Shirk v. Wabash R. Co.

• Decision Date: 10 January 1896
• Parties: SHIRK v. WABASH R. CO.
• Court: Indiana Appellate Court

14 Ind.App. 126

42 N.E. 656

SHIRK

v.WABASH R. CO.

Appellate Court of Indiana.

Jan. 10, 1896.

Appeal from circuit court, Huntington county; J. W. Adair, Special Judge.

Action by Mary J. Shirk, a minor, by her next friend, against the Wabash Railroad Company, for personal injuries. From a judgment for defendant, plaintiff appeals. Affirmed.

Branyan, France & Branyan and C. W. Watkins, for appellant. Stuart Bros. & Hammond, for appellee.

ROSS, J.

The appellant, Mary J. Shirk, a minor, by her next friend, William H. Shirk, brought this action to recover damages for personal injuries received, the result of being struck by one of appellee's trains at a point in the city of Huntington where a street of said city crosses appellee's railroad track. The question presented on this appeal is this: Do the facts found entitle appellant to a judgment? The substance of the facts found by the jury in their special verdict may be summarized as follows: That Condit street, in the city of Huntington, where the accident occurred, runs nearly north and south. Appellee has three railroad tracks, running east and west, crossing Condit street; the center being the main track, and the other two being side tracks. The south side track was 7 feet, and the north side track 8 feet and 3 inches, from the main track. These tracks are the same distance apart for several hundred feet east, and for a quarter of a mile west, of Condit street. Over these distances they are substantially on a level grade. There are no buildings, trees, or other obstructions, when there are no trains on the side tracks, that interfere with the view of trains approaching Condit street, either from the west or the east, for several hundred feet from Condit street. The Chicago & Erie Railroad has also two side tracks, 8 feet apart, crossing Condit street, and running east and west, parallel with appellee's tracks. The south track of said side track is 43 feet north of appellee's north side track. The grade of Condit street at the crossing, and for some distance north, is on a level with the railroad tracks, but south of the tracks it is about 18 inches below the grade of the railroad tracks. On March 1, 1893, a freight train of appellee, consisting of 38 cars and an engine,-5 of the cars being box cars,-going to the west, ran in on its south track, and stopped west of Condit street. The engine and the 5 box cars were detached from the front of the train, and were run upon appellee's center or main track. The remainder of the train was left standing on the south side track, west of Condit street. On account of the cars left standing on appellee's south side track, a person approaching on Condit street from the south “could not see trains approaching from the west on the main track for one thousand feet.” While the train was standing on appellee's south side track, west of Condit street, the appellant, returning home from school, and going north on the west side of Condit street, passed over the south side track, at the rear end of said train; and while attempting to cross the main track, just as she stepped on the south rail thereof, she was struck by an engine and box car approaching rapidly from the west, and thrown in the air a distance of about 20 feet. She was lifted up and carried in an unconscious condition to her home. On account of the cars standing on the south track, she could not see a train approaching on the main track from the west until she was within 5 feet of the main track. That, just before stepping over the south rail of the south side track, “she stopped to look and listen, and did look and listen, at said time and place, and saw and heard no train approaching.” That the engine and box car were approaching rapidly from the west. That they “were being so run towards said street crossing at a great, unusual, and unlawful rate of speed, to wit, at twenty miles an hour, and that in approaching said Condit street the bell on said engine was rung and the whistle sounded.” That “the engineer and fireman were at their proper places on said engine, and two brakemen were on top of said box car. One of them was standing on the east end of said box car, facing east. Said brakeman looking to the east on said box car was the only one on said engine or box car who saw the plaintiff before she was struck, and plaintiff could not be seen by any of the men on said car or engine, after she came in view in crossing said south track, in time to stop or check the speed of said engine or box car, so as to avoid said accident.” That at the school which appellant was attending there were 300 pupils, from 6 to 14 years of age, and that a large number of them crossed the railroad tracks at Condit street in going to and returning from school. That the street was a public crossing, extensively used by the public. That the appellee did a large amount of switching and running of trains on its tracks at that place, and had placed no flagman or person at said crossing, and took no precaution to warn said school children and others of danger that might ensue from the running of trains over said crossing. That, “at the time of the injury to this plaintiff, there was in force in the city of Huntington a city ordinance forbidding cars to run on said railroad in said city limits at a greater speed than twelve miles per hour. That said ordinance had been in force for a long time prior to said injury, to wit, 14 years.” It is also found that appellant is a minor under the age of 13 years; that at the time of the accident “she was a child 12 years of age, and inexperienced in the methods of railroading”; that at the time of the accident she “was a girl of ordinary size and intelligence for one of her age, and had been trusted by her parents to go to and from school and other places in said city by herself”; that “she had been in the habit of crossing said railroad four times a day, each day during the school terms, for 18 months”; that the appellant, “in approaching said crossing at the time and place she received the injury, was a child of immature years, and was exercising the caution and prudence to the best of her judgment, and was without fault or negligence.” It is also found that in the accident appellant “received a severe bruise and sprain in one of her ankles, several bruises on her back and shoulder, and two or three scalp wounds. She was rendered unconscious for some four or five hours, and vomiting blood for two or three days, and she was confined to her bed fourteen days. No bones were broken or dislocated. After about fourteen days she was able to be up. During said fourteen days she suffered considerable pain, and for some months afterwards suffered pain at times, in consequence of said injuries. Said injuries were not necessarily permanent, and said plaintiff has not fully recovered therefrom. In consequence of said injuries occasioned by said accident, said plaintiff has been damaged in the sum of $1,500.”

Under section 3106, Rev. St. 1881 (Rev. St. 1894, § 3541), incorporated cities are specially empowered to regulate by ordinance the speed of railroad trains while running through the city. Hence any violation of such an ordinance is negligence. If the appellee was running its engine, with a box car attached, at the rate of 20 miles an hour, in violation of the ordinance limiting the speed of trains to 12 miles an hour, that was negligence on its part; and if such negligence caused the injury to appellant, and she did not contribute thereto, it must respond in damages. The appellant a child of 12 years of age, of average intelligence for one of that age, so far as the facts show, must have known that it was dangerous to cross a railroad track in front of a moving train. And, while the law presumes that a child of that age is not capabale of exercising the same degree of care for her own safety which one of more mature years is susceptible of using, nevertheless it must be assumed that one of that age is capable of appreciating that there is danger, and that care must be used to avoid being struck. That one of appellant's age is more likely to misjudge distance, or miscalculate the rate of speed of a train, than an adult, is evident. At the same time, a child of that age is willing to take greater risks, and, on account of its agility, is less liable to be injured.

Counsel for appellant say that they are unable to conceive by what mental reasoning the trial court concluded that the facts found by the jury were insufficient to warrant a judgment for the appellant. The reason given by the court for its holding, they say, was that “he could not tell what was the proximate cause of her injuries.” Then they proceed to say the proximate cause is plain to be seen from the facts found, that “the meeting on that railroad track was and could be no other than the result of the speed with which the girl approached the track, and the speed with which the broken train approached the crossing.” The law recognizes not only the right of the railroad companies to operate their trains, but also the right of the public to use the highways; and, where one is intersected by the other, both the railroad company and the public have a right of user. The railroad company has no right to cut off or to interfere with the rights of the public. Neither has the public a right to interfere with the operation of the railroad. But common experience teaches us that an engine and train of cars propelled by steam, when under headway, is not so easily controlled that it can be stopped or started instantaneously, or even within a short distance, while travelers on a highway, in a wagon or on foot, can stop at will. Hence the former has a precedence over the latter, when both would reach the intersecting point at the same time. It is for this reason that the traveler must stop and permit the train to pass. This being the right of the former, one who attempts to cross in front of a...