Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Lynch

• Decision Date: 26 January 1909
• Docket Number: 6,336
• Citation: 87 N.E. 40,43 Ind.App. 177
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. LYNCH

87 N.E. 40

43 Ind.App. 177

PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. LYNCH

No. 6,336

Court of Appeals of Indiana

January 26, 1909

From Tipton Circuit Court; J. F. Elliott, Judge.

Action by Marion A. Lynch against the Pittsburgh, Cincinnati Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

John L Rupe and R. B. Beauchamp, for appellant.

William S. Christian, T. J. Bishop and Dan Waugh, for appellee.

OPINION

HADLEY, J.

Appellee sued appellant for damages on account of injuries sustained in a collision with one of appellant's trains at a highway crossing in the town of Arcadia. The negligence charged in the complaint is running at a high and unusual rate of speed and failing to give proper signals for the crossing at which the accident occurred. Trial was had by a jury, and judgment rendered in favor of appellee for $ 1,000.

Appellant presents as its first ground for reversal the alleged error of the court in giving instruction four, which, in connection with instruction three, clearly defined the general duties of the appellee upon approaching the railroad crossing. Instruction four then proceeded to define the general duties of appellant upon the approach of one of its trains to a highway crossing, and in doing so the court used this language: "While I have instructed you as to the duty and care of the plaintiff in approaching the railroad crossing on Main street where he was injured, it was the duty of said defendant to give timely warning, of the approach of its locomotive and train of cars on said track, to the plaintiff while approaching said street crossing, and this the defendant was bound to do, whether or not there was a statute or ordinance requiring signals to be given at said street crossing, and any failure to exercise this care required on the part of said defendant at said street crossing, if shown to exist in this case, was negligence on the part of said defendant." It is urged against this instruction that the use of the words "timely warning" in the instruction is not the true measure of the warning to be given, but what warning should be given is a matter that should be left to the jury, under all the conditions; and also that there is a statute which fixes the measure of appellant's duty in such cases. It is argued that under this instruction the jury was told that it was the appellant's duty to give sufficient warning to appellee in the situation in which he then was with reference to the wind and his ignorance of the approach of the train, matters of which the engineer of appellant's train could have no knowledge. We do not think the instruction is fairly capable of this interpretation. It was simply a general instruction as to general duties, and the court, by instruction twenty-nine, specifically fixed the obligation of the appellant in the particular case by charging that a special statute required the railroad company to sound the whistle at a point from eighty to one hundred rods from a highway crossing, and to ring the bell from such point until the engine passes over the crossing. This fixed the measure of the company's statutory duty in this regard, and if the evidence shows that the company did this, it discharged such duty, and it was not material in what direction the wind was blowing, and it was not a question for the jury to determine whether the signals, as thus fixed and required by the law, were sufficient or adequate in the case, if such signals as the law specifies were given. The language of instruction four was not incorrect as an abstract proposition of law. See Indianapolis, etc., R. Co. v. McLin (1882), 82 Ind. 435, and Cleveland, etc., R. Co. v. Miles (1904), 162 Ind. 646, 70 N.E. 985, where the exact language of this instruction is approved.

Objections were made to the giving of instruction five. This was, in effect, that appellant had no exclusive right in the street except to run its trains over the track, and it must so use and manage its trains as not to injure others who are lawfully using the street, and the running of trains at a high speed over the crossing, without giving a reasonable notice and warning by ringing a bell or sounding a whistle, would render the company liable, if plaintiff was without fault.

It is contended that a railroad company running through the streets of a town is not bound so to run its trains as to avoid all injury, as it is urged that this instruction declares the law to be. Taking the instruction as a whole, it is clear that it properly states the obligation of the railroad company. It is the duty of a railroad company operating trains through the town or city so to run its trains and give such warnings as will avoid injury to all persons who are also using said streets with due care and in a proper and lawful manner. And whenever such company fails to perform this duty, as here prescribed, it is liable for damages caused by such failure; and it is not true that a railroad company, which upon approaching a town or city, sounds the whistle from eighty to one hundred rods before reaching the first crossing in such town or city, has fully discharged its duty to the public, and relieved itself of all liability further to sound its whistle, or give warning, or put its train under control, or in some manner further to protect persons upon the streets of such town or city at subsequent crossings. As is said in Cleveland, etc., R. Co. v. Miles, supra: "It is well settled that where one or more railroad tracks cross a public street of a city in a populous neighborhood, greater vigilance and care on the part of the company to avoid injuring persons using the street are required than at ordinary highway crossings in the country, or in sparsely settled and unfrequented places. In this, as in other cases, the degree of care to be exercised by the company must be commensurate with the dangers of the particular situation created by its use of the street. It may have the right to occupy the street with its tracks, and to use them for the purpose of moving its locomotives, cars, and trains, but it has no exclusive right to the use of the street, and the law imposes upon it, as upon all other persons, the duty of using its property in such manner as not to injure others who are themselves lawfully using the street and crossing. The running of locomotives and trains at a high rate of speed over street crossings in a city, even where the ordinary signals or the statutory warnings are given, may constitute negligence, and render the company liable for injuries occasioned thereby. And, where no signals are required by statute, a failure to give a reasonable notice and warning of the approach of a locomotive, by ringing the bell or sounding the whistle, may subject the company to liability, where a traveler at the crossing is injured without contributory fault on his part. If the dangers of the situation require it, extraordinary precautions must be taken by the company to protect the public from injuries likely to occur at such crossing. Neither the ringing of the locomotive bell, nor the sounding of the whistle, nor the maintenance of a flagman at a street crossing is sufficient of itself to exonerate the railroad company from responsibility for an accident and injury resulting from the high and dangerous speed of the train, if these precautions are inadequate to render the public reasonably safe and secure in the lawful and careful use of the street."

It is also urged that the court erred in giving instruction six. By this instruction the court told the jury, among other things that, in estimating the damages appellee had sustained, they should consider the nature and character of his injuries, if any; whether such injuries are permanent or temporary; his physical pain and suffering, if any, on account of such injury; his loss of time, if any, occasioned thereby and the value thereof, and his reasonable and necessary expenses, if any he has incurred on account of his injuries, including medical services, etc. It is urged against this instruction that it authorized the jury to award special...