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

• Decision Date: 05 October 1911
• Docket Number: No. 21,948.,21,948.
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. TERRELL

177 Ind. 447

95 N.E. 1109

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

v.TERRELL

No. 21,948.¹

Supreme Court of Indiana.

Oct. 5, 1911.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by Lydia O. Terrell against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Case transferred from Appellate Court under Burns' Ann. St. 1908, § 1405 (Acts 1901, p. 590). Affirmed.Geo. E. Ross, for appellant. Manley & Stricler and Elliott & Elliott, for appellee.

COX, J.

Appellee recovered a judgment in the lower court against appellant for personal injuries alleged to have been inflicted upon her by the negligence of appellant's employés in the movement of one of its switching trains across a public street in the city of Marion, whereby the train was backed into a wagon in which appellee was riding with her husband, who was driving.

From this judgment of $2,250, appellant prosecutes this appeal, and charges error on the part of the trial court in overruling its demurrer to the complaint of appellee, its motion for a new trial, and its motion in arrest of judgment. By the first and last specifications of error, the sufficiency of the complaint is brought in question by appellant.

[1] The complaint is substantially as follows:

“The plaintiff complains of the defendant, and says that said defendant is now, and has been for more than 10 years last past, a corporation duly organized and incorporated, and has during the last past 10 years or more owned and operated and controlled a line of railroad from the city of Pittsburgh, in the state of Pennsylvania, in and through the said county of Grant, in the state of Indiana, to the city of Chicago in the state of Illinois, running into and through a large number of intervening cities, towns, and stations; that in operating and managing its said road said defendant has, during said time, and did on the 17th day of December, 1906, own and use, and still owns and uses, a large number of locomotive engines and trains of cars, both freight and passenger; that said defendant runs over its said road daily a large number of freight and passenger trains, hauled and drawn by its said locomotive engines; that it has and maintains, and did have and maintain, at the city of Marion, in Grant county, in the state of Indiana, on or about the 17th day of December, 1906, side tracks, switches, and spurs, and all the usual and necessary convenience for managing and operating its said road; that on the 17th day of December, 1906, one of the defendant's said side tracks, switches, or spurs extended across a public street and highway in the western part of the city of Marion, known and called second street, or Delphi avenue; that the defendant's said tracks and railroad in crossing said Second street, or Delphi avenue, run nearly due north and south, or at about right angles with said street, and that said Second street, or Delphi avenue, runs east and west in said city of Marion; that said Second street, or Delphi avenue, is about 40 feet wide, and is paved with brick up to the east line of defendant's said track; that where said railroad crosses said Second street, or Delphi avenue, in the city of Marion, people are constantly passing and repassing and crossing said tracks of said railroad company.

“Plaintiff further avers that on the 17th day of December, 1906, just at dark, in the evening, she, in company with her husband, was driving in a one-seated, one-horse wagon, along and upon said Second street, or Delphi avenue, as travelers thereon; that when about 100 feet from said crossing, and approaching the same from the east, her said husband driving, he (her said husband) checked the horse and drove in a slow walk, and she and her said husband looked and listened to see and hear if a train of cars or an engine were approaching said crossing; that she and her said husband looked both to north and south, up and down said railroad track and continued to so look and listen for any signal or any sound of an approaching train or engine; that they neither of them saw or heard any train or engine approaching, and not seeing or hearing any locomotive engine or train, and not hearing or seeing any signals given, they started to drive across said track, approaching the same from the east; that as the horse the plaintiff and her husband were driving approached defendant's said tracks, and just as plaintiff and her said husband entered upon said track at said crossing, the defendant carelessly and negligently ran and operated a certain locomotive engine and cars along, over, and upon its said track and road at said crossing, in a south or nearly south direction, and so operated and ran said locomotive and cars backward, over, and across said crossing, at a dangerous and reckless rate of speed, to wit, about 30 miles per hour, and without having any light on the rear end of said train of cars, as a signal of its approach to travelers; that the defendant, its agents, and servants, in the operation and management of said train of cars and engine, carelessly and negligently failed to sound the whistle, or ring the bell, or to have any light on the front end of said train of cars (the end that was in front in the moving of said train of cars), and carelessly and negligently failed to give any signal whatever of the approaching of said cars or train; that on the east side of said railroad track, and on the north side of said Second street, at said point where said accident occurred at said crossing, there are buildings projecting out to the east side of said railroad track, and to the north of said Second street, which obstruct the view of said railroad tracks and its trains to the north of said railroad track, as approached from the east; that by reason of the said obstruction, and by reason of the rapid speed at which said train was run, and by reason of the defendant, its agents, and servants failing to sound the whistle, or ring the bell, and by reason of said defendant, its agents, or servants failing to have a light on the rear of said train when it was pushing the same across a public street when it was dark, and by reason of the defendant, its agents, or servants failing to give any signals whatever of the approach of its said train at said time and place, and for the further reason that said train approached said crossing so quietly and so silently that its approach could not be heard or seen by this plaintiff or by her companion, although they and each of them have good eyesight and good hearing, that as said engine and train of cars approached said crossing in said careless and negligent manner as aforesaid, just as this said plaintiff and her companion were crossing said railroad track, they were run against and over by said train of cars at and on said crossing; that plaintiff was thrown from the wagon in which they were riding with great force and violence, and was hurled a great distance by reason of being struck by said train of cars at said crossing, and badly injured thereby by having her spinal column injured and sprained, her ribs broken, her ankle fractured, sprained, and broken, and the ligaments thereof torn loose, her shoulder and back mashed, bruised, and injured, by reason of which she (the plaintiff) has received lasting, permanent injuries; that she is now crippled, and will, as she believes and is informed by her doctors, remain a cripple during the remainder of her natural life; that she is unable, and has been ever since the injury aforesaid, to do her work as housekeeper and to attend to her home duties; that she has been under the doctor's care ever since said injury, and is still the object of his care and treatment, and will so continue to remain.

“Wherefore, by reason of the facts heretofore stated, she has been damaged in the sum of $5,000; that said injuries were received without any fault whatever of the plaintiff or her companion, who was with her at the time, but wholly on account of the careless and negligent manner in which defendant was running and operating its said locomotive engine and cars, by running upon said crossing of said street, as aforesaid, without giving any signal, sounding any whistle, without having any light or lights thereon, so that they could have been seen by persons crossing said tracks, and without having any person or persons on the rear end of the car being pushed across said crossing, or in any manner or way making any provisions for the safety of the traveling public at said crossing. Wherefore she prays for judgment,” etc.

It is the contention of counsel for appellant that the complaint does not allege facts showing a duty owing to appellant in the operation of its train and the violation of it. While it may be at once conceded that the complaint is not a model of clear, concise, and orderly allegation of actionable facts, it is quite clear that it does directly allege facts sufficient to show a violation of both a statutory and a common-law duty to give warning of the approach of the train to a highway crossing. It is alleged that appellee, together with her husband, was a traveler at dark of a winter evening on a public highway, a much traveled street of the city of Marion, riding in a horse-drawn vehicle thereon, and approaching the point where the street was intersected by appellant's railroad tracks, and that when they had entered upon the tracks at the street crossing in pursuing their journey as travelers along the street appellant drove one of its locomotive engines with a train of cars backwards over and across the crossing at a speed of 30 miles an hour, without a light, without sounding a whistle or ringing a bell, or giving other signal to warn that the train was approaching the crossing,and that just as the plaintiff and her husband were crossing said railroad track they were run against and over by said train of cars at and on said crossing,...