Pennsylvania R. Co. v. Sargent

• Decision Date: 01 February 1949
• Docket Number: 17752.
• Citation: 83 N.E.2d 793,119 Ind.App. 195
• Parties: PENNSYLVANIA R. CO. v. STRGENT.
• Court: Indiana Appellate Court

83 N.E.2d 793

119 Ind.App. 195

PENNSYLVANIA R. CO. v. STRGENT.

No. 17752.

Appellate Court of Indiana, in Banc.

February 1, 1949

Appeal from Johnson Circuit Court; Grant Rogers, Judge.

White, Wright, Raub & Forrey and John M Miller, all of Indianapolis, and Richard L. Lagrange, of Franklin, for appellant.

Townsend & Townsend, of Indianapolis, for appellee.

ROYSE Presiding Judge.

Appellee brought this action against appellant for damages for the death of her decedent in a railroad crossing accident at a point where Kitley Avenue in Marion County is intersected by the tracks of appellant.

The complaint is in two paragraphs. The material allegations of the first paragraph may be summarized as follows: That Kitley Avenue is a heavily traveled street and public highway running in a northerly and southerly direction in the city of Indianapolis, Marion County, Indiana; that appellant's railroad tracks running in a generally easterly and westerly direction interest said Kitley Avenue at right angles and said crossing was owned and controlled by appellant; that commencing several hundred feet east of Kitley Avenue appellant's track is downgrade to such an extent there is a valley or dip in the tracks. Because of this low place trains are hidden from view of persons using said Kitley Avenue crossing while trains are passing over said low place in the tracks; that a group of telephone poles, trees, etc about ten feet north of appellant's northernmost track and immediately east of Kitley Avenue blocks the view of any train approaching from the east. The following acts of negligence were charged: Failure to keep the crossing in safe condition with respect to automobile traffic on Kitley Avenue, in that two deep ruts or pits had been worn in the macadam on said crossing; excessive speed at which it operated its train, to-wit: 70 to 80 miles per hour failure to sound whistle or bell or give other warning of the approach of the train; and failure to install and maintain sufficient and proper warning signals to admonish travelers of appellant's trains. The second paragraph, in addition to the foregoing allegations, charged appellant's engineer saw decedent's car was stalled on the crossing and knew he was unable to move, and the accident could have been avoided if the engineer had used diligence to stop the train. Trial to jury resulted in a verdict for $10,000 in favor of appellee. Judgment accordingly.

The error assigned here is the overruling of appellant's motion for a new trial. Specifications of the motion question the sufficiency of the evidence and the legality of the verdict, the giving and refusal to give certain instructions, and errors in the admission of evidence.

We may consider only the evidence and the reasonable inferences which may be drawn therefrom most favorable to appellee. With this rule in mind, we are of the opinion the record discloses evidence from which the jury could have found or reasonably inferred the following facts:

That Kitley Avenue is a street and public highway at the eastern edge of the city of Indianapolis. It runs north and south and at a point about two squares south of East Washington Street it is intersected at a right angle by the double tracks of appellant. This point of intersection is just outside the city limits of Indianapolis. There is a heavy line of traffic on Kitley Avenue across this intersection. A row of Lombardy Poplars ran about 150 feet east of Kitley Avenue, the branches of which trees and other shrubbery hung over the right-of-way ten feet or more. Bushes and weeds on the north right-of-way of the tracks extended about 100 feet east of the crossing. There was also a row of telephone poles running eastward just north of the tracks. These conditions obscured the view of the tracks to the east. Because of the dip in the tracks on the east side it was impossible to see a train approaching from the east until within three or four feet of the north track; that when you were within three or four feet of the north track you could see only ten feet to the east on the track. On the day involved and for some time prior thereto there were two ruts at the tracks of this crossing. They were from five to six inches deep and at least two feet wide. These ruts were about seven feet apart. The only signal at the crossing is the regular cross-arm signal. On October 17, 1945 appellee's decedent was driving his automobile south on Kitley Avenue from Washington Street. As he approached the crossing he was driving at a speed of from five to eight miles per hour; that because of the safe and reasonable manner decedent was driving his automobile, it did not have sufficient power to pull out of the ruts in the track in time to avoid the collision in which he was instantly killed. The train was traveling at a speed of about 90 miles per hour. It did not blow a whistle or ring a bell or give other warning of its approach. Decedent was familiar with this crossing and it was his practice to stop before proceeding across it. There was evidence from a driver who was about a block behind decedent that decedent did not stop before the collision. It was shown in evidence that a school bus driver had killed his engine in the ruts on this crossing a short time before the day of the accident involved in this case. Appellant knew of the condition of this crossing. There had been other accidents of a similar nature at this intersection. We are of the opinion there was sufficient evidence to sustain the verdict of the jury. Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company v. Rushton, 1929, 90 Ind.App. 227, 148 N.E. 337, 149 N.E. 652; Watson v. Brady, 1935, 205 Ind. 1, 12, 13, 185 N.E. 516; Vanosdol, Receiver, v. Henderson, Adm'r, 1939, 216 Ind. 240, 22 N.E.2d 812; Bartley v. Chicago and Eastern Illinois Railway Company et al., 1940, 216 Ind. 512, 522, 24 N.E.2d 405.

But appellant contends the record discloses appellee's decedent was guilty of negligence as a matter of law and therefore the verdict is contrary to law. We cannot agree with this contention. We are of the opinion that the question of whether decedent was guilty of contributory negligence that proximately contributed to his death was one of fact for determination by the jury. Pennsylvania Railroad Company v. Lytle, 1941, 109 Ind.App. 318, 328, 329, 34 N.E.2d 939; Jones et al. v. Kasper, 1941, 109 Ind.App. 465, 475, 33 N.E.2d 816; New York Central Railroad Company v. Pinnell, Adm'rx, 1942, 112 Ind.App. 116, 133, 40 N.E.2d 988; Bartley v. Chicago and Eastern Illinois Railway Company et al., supra, 216 Ind. pages 522, 524, 525, 24 N.E.2d 405.

For the reasons hereinbefore set out, the trial court did not err in refusing to instruct the jury to find for appellant.

Appellant contends the trial court erred in giving to the jury appellee's instruction No. 5. This instruction related to the measure of damages. If there was any error in the giving of this instruction it was waived by appellant's failure to assign as one of the specifications of the motion for a new trial that the verdict of the jury was excessive. City of Terre Haute v. Webster, 1942, 112 Ind.App. 101, 110, 40 N.E.2d 972; Continental Assurance Company v. Krueger, 1946, 116 Ind.App. 693, 697, 66 N.E.2d 133 .

Appellee's instruction No. 10 given by the court told the jury that if they found by a preponderance of the evidence appellant failed to give the statutory signals of its approach, that was negligence and may be considered with all the other evidence in determining whether decedent was guilty of contributory negligence. We cannot agree with appellant's contention that this instruction peremptorily requires the jury to find against appellant if the jury merely finds it failed to give the statutory signals. We believe the instruction was proper. New York Central Railroad Company v. De Leury, 1935, 100 Ind.App. 140, 192 N.E. 125; Vanosdol, Receiver, v. Henderson, Adm'r, supra; Bartley v. Chicago and Eastern Illinois Railway Company et al., supra.

The trial court refused to give appellant's instruction No. 2, which is as follows:

'I instruct you that under the evidence in this case there was no duty on the defendant to maintain at the crossing in question at the time involved in this case an automatic crossing bell to warn travelers on the highway of approaching trains'.

We believe the court properly refused this instruction. The instruction was too broad. As tendered, it was misleading and confusing. Under the pleadings and the...