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

• Citation: 56 Ind.App. 58,102 N.E. 887
• Decision Date: 15 October 1913
• Docket Number: No. 7,986.,7,986.
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. BRODERICK.
• Court: Court of Appeals of Indiana

56 Ind.App. 58

102 N.E. 887

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

v.BRODERICK.

No. 7,986.

Appellate Court of Indiana, Division No. 2.

Oct. 15, 1913.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Daniel Broderick against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals. Reversed, with instructions to grant a new trial.Samuel O. Pickens and Owen Pickens, both of Indianapolis, for appellant. George W. Galvin, of Indianapolis, for appellee.

CALDWELL, J.

The record discloses that on the 9th day of May, 1907, appellee's minor son, John Broderick, then 13 years old, had his left leg crushed by one of appellant's locomotives, or by a car drawn by said locomotive, at or near the Ray street crossing in the city of Indianapolis. This action was commenced by appellee, the father of said boy, against appellant, in the superior court of Marion county, to recover compensation for loss of services, etc., based on said injury. The negligence charged against appellant, as disclosed by the complaint, was the violation of a certain ordinance of the city of Indianapolis, by running said locomotive within said city without ringing the bell attached thereto, and by operating said locomotive and train of cars within the limits of said city at a greater rate of speed than four miles per hour. The answer to the complaint was a general denial. There have been three trials of this cause in said court. At each of the first two trials, the jury disagreed. The third trial resulted in a verdict and judgment in favor of appellee, for the sum of $1,500, from which this appeal was taken. The error assigned is the overruling of the motion for a new trial. Under such assignment, appellant's brief presents for consideration the following questions: (1) The sufficiency of the evidence to sustain the verdict; (2) the alleged error of the court in refusing to give appellant's requested instructions numbered 1 and 14, respectively, and in giving of its own motion instructions numbered 12 and 14, respectively.

[1] Appellee challenges the sufficiency of appellant's brief as measured by the requirements of rule 22 of this court (55 N. E. v). Said rule has been interpreted, both by this court and by the Supreme Court, to mean that appellant's brief should be prepared so that each of the judges of the court in which the cause is pending on appeal may comprehend the questions presented from an inspection of the brief, with recourse to the transcript only in case of disagreement between appellant and appellee as to what is therein contained. It is only in a secondary sense that said rule is promulgated for the convenience of the court. Primarily, its purpose is that public interests may be served by the expedition and dispatch of the business before the court. Appellant's brief, when measured by said rule strictly construed, while ably prepared, is technically insufficient in several particulars, but it is evident that there has been a good-faith effort to comply with said rule, and under such circumstances, this court, as disclosed by former decisions, is disposed to hold a brief sufficient.

[2] The record discloses that at said time when plaintiff's son received said injury, Ray street extended east and west through the city of Indianapolis, and that appellant's lines of railroad extended in a north and south direction through said city, intersecting Ray street at grade and practically at right angles. A short block east of said intersection there was the common intersection of said Ray street and Delaware street, extending north and south, and Madison avenue coming into said intersection from the northwest. Bachman's mill a two-story structure, fronted on Madison avenue, and extended westward along the north property line of Ray street to very near appellant's tracks. Appellant's railroad at said Ray street crossing consisted of three tracks, of which the east track was a stub track, extending northward from a bumper on the north side of Ray street near the southwest corner of said mill. The middle track was appellant's' main line, and the west track was a running or passing track. Said main track and said running or passing track both extended across Ray street, and thence to the south. Chestnut street extended north and south, and intersected Ray street at the point of the intersection of the latter and said railroad track; but the evidence was not clear as to whether said tracks were within the limits of Chestnut street or immediately east of it. It was 7 feet from the west rail of the east or stub track to the east rail of the main track, and 12 feet from the west rail of the main track to the east rail of the running track. The record does not disclose the exact distance between the east rail of the stub track and Bachman's mill, but there was evidence that the space between said mill and a box car, which was standing on the south end of the said stub track at said time, was about two feet. The main track was straight from Ray street north to Madison avenue, a distance of about 600 feet, at which point it curved slightly to the west. The stub track ran parallel with the main track on the west, and with the west end of Bachman's mill on the east, to Madison avenue, and there joined the main track. South street was about 4,400 feet north of Ray street, and the South street yards were north of South street. There was evidence that said railroad approached said crossing from the north on a slightly rising grade. At the time of receiving his said injury, appellee's said son was 13 years of age, of at least average activity, strength, and intelligence, and his senses of sight and hearing were good. The foregoing facts shown by the evidence were undisputed.

Respecting the occurrence in which appellee's said son received his injury, the boy's testimony was substantially as follows: In May, 1907, the boy was attending school, but sold and delivered newspapers evenings. On the 9th day of May there was no school. At about 3 o'clock in the afternoon of said day the boy, in company with his cousin, Patrick Lyons, who was about the same age as appellee's son, was walking westward along the north sidewalk of Ray street from its said intersection with Delaware street and Madison avenue, toward said Ray street crossing, his course being along the south side of said Bachman's mill. His destination was some point west and north of said Ray street crossing, and his purpose to procure papers preparatory to the evening delivery. He had traveled the Ray Street crossing many times, and was familiar with the surroundings, and knew that appellant's said lines of railroad crossed said street at said point. As he approached the crossing, he discovered a box car against the said bumper at the south end of said stub track; the south end of said car being near the north line of the sidewalk. There was a space of about two feet between said car and the mill. The mill completely obstructed the view of appellant's tracks until the boy reached its southwest corner, and was also an obstruction to the noise made by any train approaching from the north. Patrick Lyons was slightly in advance of appellee's son. When appellee's son reached the corner of the mill, he stopped and looked carefully northward through the space between said box car and said mill, and also listened carefully in an effort to ascertain whether or not a train was approaching from the north. Neither seeing nor hearing an approaching train, he next looked southwestward across the tracks to where a crossing flagman was stationed, but the flagman was standing with his back turned to the boy, engaged in conversation with some other man. Receiving no sign or recognition from the flagman, appellee's son, keeping his eyes turned towards said flagman, then walked from behind said car, and, without looking up the track, passed onto said main track, whereupon his cousin, who was slightly in advance, as aforesaid, called out to him in warning, and at that instant the train struck him, and he was carried on the front part of the engine south a distance of about 60 feet, where in some manner he was thrown under the engine, and it ran over him and crushed his leg. It was the boy's habit, as he approached said crossing, to look northward between the mill and any standing car that might be there, and then towards the flagman, and if he saw no train, and the flagman gave him a signal, he remained standing or crossed the track, according to the nature of the signal. On that occasion, the flagman's back being turned, as aforesaid, and receiving no signal from the flagman, he passed immediately from behind the car upon the main track, without looking up the track as aforesaid. The boy did not see or hear the train until he reached the middle of the track, when the train was so close to him that he could not avoid it. He did not hear the engine bell ringing, and gave it as his judgment that the train was running 15 to 20 miles an hour. He testified that he was in the habit of relying on the flagman to give him a signal if the train was approaching. Appellee's son was corroborated in the main by his said cousin, Patrick Lyons. His testimony was in part to the effect that he looked around the corner of said box car, but saw no train; that there were several coal cars farther north on the stub track, which obstructed the view to the north, and that the main track had a curve in it south of Madison avenue, but that the view of the main track was not obstructed for one square to the north; that when he reached the center of the main track, he saw the train about 15 feet north of him approaching at the rate of 15 to 20 miles per hour, and that the engine bell was not ringing. The two boys were corroborated in their judgment as to the speed of the train, and that the engine bell was not ringing, by one other witness. One...