Pittsburgh, C., C. & St. L. Ry. Co. v. Pence

• Decision Date: 20 June 1916
• Docket Number: No. 22815.,22815.
• Citation: 113 N.E. 7,185 Ind. 495
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. PENCE.

185 Ind. 495

113 N.E. 7

PITTSBURGH, C., C. & ST. L. RY. CO.

v.PENCE.

No. 22815.

Supreme Court of Indiana.

June 20, 1916.

Appeal from Circuit Court, Howard County; William C. Purdum, Judge.

Action by David S. Pence against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff on the complaint and cross-complaint, and defendant appeals. Transferred from Appellate Court under Burns' Ann. St. 1914, § 1405. Affirmed.G. E. Ross, of Logansport, for appellant. Blacklidge, Wolf & Barnes, of Kokomo, and Condo & Browne, of Marion, for appellee.

MORRIS, J.

Action by appellee for damages for injuries to his traction engine and clover huller that were struck by appellant's passenger train at a public highway crossing. Appellant filed a cross-complaint against appellee for injury to its train by the same accident. Appellant's demurrer to the complaint was overruled. Trial by jury, with verdict and judgment for appellee on the complaint and cross-complaint. Error is assigned here on the ruling on demurrer and on the overruling of appellant's motion for a new trial.

The complaint alleges that a public highway known as the Taylor Creek gravel road runs north and south in Grant county; that appellant's railroad at said place runs in a northwesterly and southeasterly direction and crosses the highway at an angle of 45 degrees; that at the intersection appellant maintained a crossing consisting of planks 16 feet long, laid parallel with the rails and below the level of the tops thereof; that the crossing was elevated 3 feet above the level of the highway, with sloping approaches only 10 feet wide, commencing about 12 feet from the track; that at and prior to the time of the accident-October 28, 1911-appellant was running a regular passenger train daily from Muncie to Converse on a schedule that required the train to pass the crossing at 6:10 p. m.; that the train, on the day of the accident, reached the crossing at said time. The complaint then proceeds as follows:

“That about 5:30 o'clock p. m. of said date the plaintiff was driving his said traction engine with said clover huller attached on said gravel road, and was going south towards said crossing; that he then drove his said traction engine up said steep grade and onto said railroad track, but that, when the wheels of said engine struck the rails of said track, said wheels skidded and started said engine southeasterly down said track, instead of following directly across the traveled portion of said crossing; that plaintiff stopped said engine, tried to back the same up, and turn it onto the traveled portion of said crossing so as to cross said railroad, but, owing to the narrowness of said approach to said crossing and the narrowness of the traveled portion of said crossing and said highway on the right of way of the defendant, it was impossible for the plaintiff to move said engine back from said railroad track without backing and running the same off of said traveled highway approach to said track and into a deep gutter on the west side thereof, and thereby ruining said engine and the clover huller thereto attached; that plaintiff then hitched or was about to hitch a team of horses to the rear of said clover huller, attempting thereby to pull said engine off of said track, but no sooner had he done so than he saw defendant's train then due at said crossing approaching the same from the southeast within the distance of from 1 to 2 miles therefrom; that from the point plaintiff first observed said train until it reached said crossing said train was moving at the rate of about 30 miles per hour; that it was then impossible for plaintiff to pull said engine and clover huller off of said track before said train would have reached said crossing, and it was impossible for plaintiff to extricate his said property from said position of danger before said train would have reached said crossing, and would have run upon and against the same and have caused the injury hereinafter mentioned and averred; that it was dark at said time, and the headlight on defendant's engine which pulled said train was lighted, and plaintiff immediately lighted his lantern and ran down said track toward said train for the distance of about 40 rods and flagged said train by swinging said lighted lantern across said track repeatedly until said train reached the place where the plaintiff was standing.

Plaintiff says further that the engine of said train was in charge of an engineer and fireman employed by defendant; that the track from the point where said train first appeared to plaintiff's view to said crossing was straight, almost level, and the defendant's view to said crossing was unobstructed, and that plaintiff was standingin front of said train as it approached at the time he flagged it and tried to cause said train to come to a stop before reaching said crossing. But plaintiff says that the said fireman and engineer on said train negligently, recklessly, and carelessly disregarded, overlooked, and paid no attention to plaintiff in his efforts to flag and stop said train or to the said warning given by the plaintiff to stop said train before it reached said crossing, and that the said defendant at said time knew, or by the exercise of ordinary care ought to have known, that plaintiff's said property was on said crossing in said dangerous and perilous situation, and that defendant negligently, recklessly, and carelessly ran said train without checking its speed down to and upon said crossing and against and upon said traction engine, and did negligently, recklessly, and carelessly mash, crush, tear to pieces, destroy, and throw said traction engine off of the said railroad track and onto the right of way adjoining to the distance of several feet, and did so injure and destroy said traction engine that the same is not now, and has not been...