Pittsburgh, C., C. & St. L. Ry. Co. v. West
| Decision Date | 05 February 1904 |
| Parties | PITTSBURGH, C., C. & ST. L. RY. CO. v. WEST. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Grant County; E. A. Huffman, Special Judge.
Action by Joseph A. West against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.
G. E. Ross, for appellant. W. S. Marshall, for appellee.
About 2:30 o'clock a. m. on the 2d day of August, 1901, one Frank West was driving north on a highway running through the village of Mier, which said highway crossed appellant's railway track at right angles in said village. The said West was in a rubber-tired, top buggy, drawn by one horse, and, as he passed over appellant's railroad track, was struck by a locomotive and train of cars running at the rate of about 35 miles an hour, by which collision he was killed. The servants and employés in charge of the locomotive and train of cars which struck and killed said West did not sound the whistle or ring the bell in approaching said crossing, as it is provided by law that they should do. Appellant's right of way at the crossing is 80 feet wide, and the track on which appellant's train was running is located in the center of the right of way. It is 40 feet from the center of the track to the south line of the right of way. Decedent was driving north, and the train that struck and killed him was coming from the west, and the headlight of the locomotive could have been seen by a person approaching appellant's right of way from the south, looking to the west, for a distance of 2 1/2 miles. There was nothing to prevent decedent from seeing the approaching locomotive and train of cars after he entered upon appellant's right of way. The facts above stated are such as a jury were warranted in finding, from both the disputed and undisputed evidence. The evidence concerning the sounding of the whistle and the ringing of the bell was conflicting, but the evidence concerning the surroundings at the crossing where the decedent was killed is not conflicting, nor is the fact disputed that decedent might have seen the approaching train for a long distance, had he looked. The jury found specially, by way of answers to interrogatories, that there was no evidence as to whether or not decedent looked for approaching trains before he attempted to cross the railway track; that there was no evidence as to whether or not decedent listened to see if he could hear the approaching train before he drove upon appellant's track. But they found that the locomotive which struck decedent carried a headlight as it approached the crossing which he attempted to cross, and that this headlight could have been seen by decedent, had he looked, at a distance of 15 rods from the crossing; that decedent could have heard the noise of the approaching train, if he had listened, at any point within 40 feet before he reached the railroad track; that decedent was possessed of good eyesight and good hearing, and, if he had looked to the west, the direction from which the train was approaching, at any point within 40 feet before he reached the track, he could have seen the approaching train.
Without considering the questions raised concerning the sufficiency of the complaint filed in this action, the one question is left for consideration, is appellee entitled to a recovery under the evidence produced and facts found in this case? The act of February 17, 1899 (Acts 1899, p. 58; section 359a, Burns' Rev. St. 1901), makes contributory negligence a matter of defense. But this act does not in any manner change or abate the duties imposed upon a traveler approaching and attempting to cross a railroad track, as laid down by the decisions of the courts of appeal in this state prior to the passage of that act; nor does that act change or alter the legal presumptions which arise from the surroundings and acts of the injured party. In Southern Indiana Railway Company v. Peyton, 157 Ind. 690, 61 N. E. 722, the court said, in speaking of this act: “The statute before us does not in any manner excuse or relieve the plaintiff from the consequences of contributory negligence, long recognized by law, nor make the presence of concurrent fault less effective to the defendant in escaping liability.” In Malott v. Hawkins, Adm'x, 159 Ind. 127, 63 N. R. 308, the court said in speaking of the same act: “This statute cannot be held to abate the legal requirements as to the care that a traveler crossing a railroad track must use, and it does not change the rule that it is presumed that the traveler saw and heard or was heedless of that which, as an ordinarily prudent man, he ought to have taken notice of.” The fact that appellant's conduct in failing to perform the duty imposed upon it by statute to sound the whistle and ring the bell when its locomotive was approaching the crossing is negligence per se did not relieve decedent from the duty of looking and listening to ascertain for himself whether or not a train was approaching. Cincinnati, etc., Ry. Co. v. Butler, 103...
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