Pittsburgh v. Macy

• Decision Date: 08 January 1915
• Docket Number: No. 8277.,8277.
• Citation: Pittsburgh v. Macy, 59 Ind.App. 125, 107 N.E. 486 (Ind. App. 1915)
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO v. MACY.
• Court: Indiana Appellate Court

59 Ind.App. 125

107 N.E. 486

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

v.MACY.

No. 8277.

Appellate Court of Indiana.

Jan. 8, 1915.

Appeal from Circuit Court, Jay County; James J. Moran, Judge.

Action by William W. Macy against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.Judgment for plaintiff, and defendant appeals.Affirmed.G. E. Ross, of Logansport, for appellant.La Follette & McGriff, of Portland, Ind., and Macy, Nichols & Bales, of Winchester, for appellee.

FELT, J.

Appellee brought this action to recover damages for personal injuries received at a railroad crossing through the alleged negligence of appellant.

The first paragraph of complaint on which the cause was tried, in substance, shows: That on August 4, 1910, appellant owned and operated a line of railroad in and through the town of Ridgeville, Randolph county, Ind.That said railroad passed through said town in a general direction from south of east to north of west across the streets of said town, including Portland street.That Portland street runs north and south through a populous part of the town, and people are constantly using said street at the point where appellant's road crossed it.That said town had a population of about 2,000, and was incorporated under the laws of the state.That on and prior to August 4, 1910, there was in said town an ordinance, duly and legally enacted, in full force and effect, regulating the speed of railroad trains within the corporate limits of said town.A copy of said ordinance is set out in the complaint.That by the provisions of said ordinance it was unlawful for appellant to run its train within the corporate limits of said town at a greater speed than six miles an hour.That appellant maintained a side track on the north side of its main track and parallel therewith, extending to the west more than one-fourth mile, and to the east about one-fourth mile, from said crossing.That there was a dwelling house on the east side of the street immediately north of the side track.That west of said house, extending south, there was a line of shade trees then in full foliage.That said house and shade trees shut off the view of the east, along said railroad, of a traveler on Portland street, approaching the railroad from the north, so that a view to the east along said railroad could not be obtained until within 25 feet of said switch track.That about 9 a. m. on said day a train of freight cars was on said said track and across Portland street.That there was another locomotive engine west of said crossing about 50 yards.That both engines were making loud noises by escaping steam.That at the time appellee approached said crossing from the north, in a light vehicle, driving a gentle horse, well broken to drive and easily controlled.That he stopped his horse about 25 feet from said switch track and looked both ways for approaching trains and listened, but neither saw nor heard any train approaching.That after a few minutes the freight train on said switch track was moved to the east and across Portland street.That appellee deemed this an invitation to cross, and drove forward in a careful and prudent manner, and looked both ways, and listened for an approaching train until his horse was entering upon the main track, when suddenly, and without warning, appellant negligently and carelessly ran a locomotive and train of cars over its main line of railroad and across said Portland street from east to west at a high and unlawful rate of speed, contrary to the provisions of the ordinance hereinbefore set out, to wit, at the rate of 50 miles per hour, and negligently failed to sound the whistle of said locomotive engine at a distance of 80 to 100 rods of said crossing, as the same approached said crossing, or to sound said whistle at all in approaching said crossing, or to ring the bell of said locomotive, and negligently failed to give any alarm as said locomotive and train of cars approached said crossing.That because of said dwelling and shade trees, and because of said engine and cars on said switch track, appellant was unable to see, and because of the noise of said locomotive he was unable to hear, an approaching train from the east.That appellee relied on appellant to operate its train in a prudent and lawful manner, and not at a speed in excess of that authorized by said ordinance.That, when appellee first came to a point in said street where he could see an approaching train from the east, a train was approaching said crossing at a distance of not more than 40 feet, and was in such rapid motion that appellee could not cross ahead of it.That he stopped his horse and pulled back on the lines to back his horse off the track, but, on account of the great speed at which such train was moving, he was unable to avoid a collision.That said train struck appellee's horse and carriage and threw appellee out and injured him, which injuries are set out in detail.That he was permanently injured.That if said locomotive engine and train of cars had been operated at a lawful rate of speed, and the statutory signals had been given, appellee would have seen and heard the locomotive and train of cars, as it approached said crossing, in time to have avoided being struck.Special damages are also alleged.

A demurrer to the complaint for insufficiency of the facts alleged was overruled, and appellant filed a verified general denial.Upon the issues thus formed, a trial by jury was had, which resulted in a verdict and judgment in favor of appellee for $2,500.Appellant's motion for a new trial was overruled.

The errors assigned and relied on for reversal are the overruling of the demurrer and the motion for a new trial.

[1]Appellant contends that the complaint is insufficient in that it fails to show any duty owing from the defendant to the plaintiff at the time and under the circumstances complained of; that the facts pleaded in the complaint fail to show that it was the defendant's duty to sound the whistle as required by law; that even though the statute imposes, upon those operating trains, the duty to sound the whistle and ring the bell at a given place, such statute does not and cannot apply to all trains, but only to such trains as approach the crossing from a point distant therefrom, equal to the distance defined by the statute; that plaintiff, in order to state a cause of action under section 5431, Burns 1908, must, by proper allegations of fact, show that the train which it is averred did not give the signals, but did cause the injury sued for, did approach said crossing from a point 80 rods distant from such crossing.

Appellant does not cite any authority to sustain such construction of the statute, and we are unable to find any.This precise question was, however, raised by the same appellant in the case of Pittsburgh, etc., Ry. Co. v. Terrell, 177 Ind. 447, 95 N. E. 1109, 42 L. R. A. (N. S.) 367, and decided adversely to appellant's contention.However, in the present casewe deem it sufficient to say that the necessary and only reasonable inference to be drawn from the facts averred is that appellant's train approached said public street crossing from a point more than 80 rods distant therefrom.

A pleading should be reasonably construed as a whole.It appears from the averments of the complaint that appellee was traveling on Portland street and approached appellant's tracks from the north; that he stopped and looked and listened before attempting to cross; that the train from the east approached said crossing at great speed, to wit, 50 miles per hour; that there were some obstructions to appellee's views; that appellant“negligently failed to sound the whistle of said locomotive engine at a distance of 80 to 100 rods of said crossing, as the same approached said crossing, or to sound the locomotive whistle of said locomotive engine at all in approaching said crossing, or to ring the bell of said locomotive engine as the same approached the said crossing, and *** negligently failed to give any alarm of said approaching locomotive engine.”

[2] The duty to give statutory signals is one fixed by law, and a failure to give such signals is negligence per se and renders the railroad company liable for injuries which are the proximate result of such failure, when the person injured is without fault contributing thereto.Lake Shore, etc., Ry. Co. v. Myers, 52 Ind. App. 59, 68 N. E. 654, 100 N. E. 313;Chicago, etc., Ry. Co. v. Coon, 48 Ind. App. 675, 686, 93 N. E. 561, 95 N. E. 596, and cases cited;Antioch Coal Co. v. Rockey, 169 Ind. 247-254, 82 N. E. 76;Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 609, 612, 100 N. E. 675, 102 N. E. 99;Pittsburgh, etc., Ry. Co. v. Burton, 139 Ind. 357, 375, 37 N. E. 150, 38 N. E. 594;Wabash Ry. Co. v. McNown, 53 Ind. App. 116, 99 N. E. 126, 129, 100 N. E. 383.

[3] In the absence of an ordinance providing regulations differing from those prescribed by the statute, the statute applies to crossings within the limits of such incorporated town.Pittsburgh, etc., Ry. Co. v. Terrell, 177 Ind. 447, 95 N. E. 1109, 42 L. R. A. (N. S.) 367, and cases cited;Lake Shore, etc., Ry. Co. v. Myers, supra.

[4] Independent of a statute or ordinance, it was the duty of appellant to give reasonable and timely warning of the approach of its train to the crossing of such a public street as that described in the complaint.Lake Shore, etc., Ry. Co. v. Myers, supra, 52 Ind. App. 64, 68 N. E. 654, 100 N. E. 313, and cases cited;Pittsburgh, etc., Ry. Co. v. Terrell, supra.

[5] The averments of the complaint are sufficient to show that appellant owed the duty to appellee of running its train at a lawful rate of speed and of giving warning of its approach to the crossing, as required by law, and to charge appellant with actionable negligence in failing so to do, and to warrant recovery, by appellee, for the injuries proximately resulting therefrom.The averments of...