Rehearing Denied November 10, 1916.
From
Howard Circuit Court; William C. Purdum, Judge.
Action
by David S. Pence against The Pittsburgh, Cincinnati, Chicago
and St. Louis Railway Company. From a judgment for plaintiff
the defendant appeals. (Transferred from the Appellate Court
under § 1405 Burns 1914, Acts 1901 p. 590.)
Affirmed.
OPINION
Morris, J.
This
was an 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. There was a 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 forty-five degrees;
that at the intersection appellant maintained a crossing
consisting of planks sixteen feet long, laid parallel with
the rails and below the level of the tops thereof; that the
crossing was elevated three feet above the level of the
highway, with sloping approaches only ten feet wide,
commencing about twelve 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 one to two 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
thirty 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 forty 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 standing
in 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, since it was so
struck, of any value whatever. That when said collision
occurred, said clover huller, which was connected with said
traction engine, was jerked, upset, mashed, broken, destroyed
and rendered of no value whatsoever and that all of said
injury to said traction engine and clover huller was
proximately...
