Smith v. Wabash Railroad Company

• Decision Date: 12 April 1895
• Docket Number: 16,878
• Parties: Smith v. The Wabash Railroad Company
• Court: Indiana Supreme Court

40 N.E. 270

141 Ind. 92

Smith v. The Wabash Railroad Company

No. 16,878

Supreme Court of Indiana

April 12, 1895

From the Warren Circuit Court.

Judgment affirmed.

W. A Rabourn, L. Nebeker, and D. W. Simms, for appellant.

E. P Hammond, C. B. Stuart and W. V. Stuart, for appellee.

Monks J. McCabe, C. J., took no part in the decision of this case.

OPINION

Monks, J.

This was an action by appellant against appellee to recover damages on account of a personal injury sustained by him at a point where appellee's railroad crosses Main street in the city of Danville, Illinois.

A special verdict was returned and judgment was rendered thereon in favor of appellee. This ruling of the court is assigned as error here.

Unless all the facts essential to a recovery by appellant are found in the special verdict, there was no error in rendering judgment thereon in favor of appellee.

It is stated in the special verdict, that Main street, in the city of Danville, Illinois, was, when the injury complained of was inflicted, the principal thoroughfare east and west through said city, and was much traveled; that appellee's railroad tracks cross said street, and that appellee had, for sixteen years prior to that time, kept a flagman at said crossing, between the hours of 7 o'clock a. m. and 6:30 o'clock p. m. of each day, to warn all passengers approaching said crossing of the danger from locomotives and trains of cars; that appellant had frequently crossed said railroad on Main street, prior to September 15, 1891, when said injury was inflicted, and had seen the flagman at said crossing, and received warnings from him at various times, and had become accustomed to depend on said flagman for warning if it were not safe; that appellee had erected a flagman's house on the south side of Main street, and west of the tracks; that Main street, including sidewalks, is eighty feet wide at said crossing, and is paved with bricks, and was crossed by four tracks of appellee's road; that appellee's passenger depot is on the west side of its tracks, about 180 feet north of Main street; that about 100 feet west of the railroad tracks, and on the north side of Main street, is a three-story brick building called the "Russel House;" that there are no buildings in the angle, and space between the Russel House and the south end, and side of said passenger depot, and the view, from said point east from said Russel House to said railroad tracks, and from said Main street north to the south end of said passenger depot, was unobstructed, and a person approaching said railroad track on Main street, going eastward, can, at a point 100 feet west of said crossing, see north on said tracks 345 feet; and from a point 80 feet west of said crossing, 400 feet; and from a point 60 feet west from said crossing, 470 feet; and from a point 40 feet west of said crossing, 690 feet; and from a point 30 feet west of said crossing, 1,280 feet; and from a point 12 feet west of said crossing, a quarter of a mile; that appellant believed that all trains passing on said road stopped at said passenger depot; that on the 15th day of September, 1891, appellant, not exceeding ten minutes before he was injured, was approaching said crossing from the west driving a two-horse wagon, sitting high up, and saw a passenger train pass over said crossing rapidly, going south; that immediately after said train passed, appellant passed over said crossing and went about a block and turned his team around and drove back over said crossing and back into said city to get some nails he had forgotten, and, not being able to get them, went on said Main street eastward, approaching said crossing; that when he came within 100 feet of said crossing, he looked and saw that no train was approaching between the passenger depot and the crossing, and turned his attention and sight to the flagman's house, to the south of Main street, and did not look up the track north a second time to see if any locomotive or train of cars was approaching said crossing, but looked for the flagman and any sign of warning of approaching train or danger, and not seeing the flagman or any sign or signal of danger, he did not look further for the train or stop his team, but continued to approach said crossing slowly, looking to see if said flagman would appear and give him any warning or signals of approaching train or danger, and not seeing any flagman or sign of danger and not seeing any danger or hearing any approaching train, and relying upon the said flagman to give him warning or signal of any approaching train or danger, drove his said team and wagon upon said crossing in the belief that there was no danger in so doing; that as appellant drove his horses drawing said wagon upon the railroad track at said crossing, a locomotive, with the headlight burning, and train of cars, without stopping at the depot, approached at a rate of speed of more than ten miles an hour from the north and struck plaintiff; that appellant did not know it was the custom not to have a flagman at said crossing after 6:30 p. m. of each day; that said flagman was not at said crossing on the two occasions when appellant crossed the same, just prior to the injury; that it was between 6:30 o'clock p. m. and 7 o'clock p. m. of said day when appellant was injured, and there was no flagman at said crossing at the time when he approached and drove upon said crossing; that at the time he was injured he did not, after first coming into view of the track to the passenger depot, look up the track north a second time to see if any train of cars was approaching said crossing, but kept looking towards the southeast and to the right to the flagman's station and for the flagman; that he did not hear the approaching train which injured him until it was within ten or fifteen feet of him; the bell on said engine was rung but was not heard by appellant; such bell when rung could be heard one hundred yards; that appellant did not, as he approached said crossing, stop his team and listen for an approaching train; that appellant had frequently passed on said crossing prior to the day on which he was injured without seeing the flagman or receiving a signal of warning from him, and upon such occasions had always passed the crossing safely; that appellant used proper care and caution in driving upon said crossing when he was injured; that he was deceived and misled into believing it was safe and proper to go upon the said crossing at such time by the act of appellee in not maintaining a flagman at said crossing, and in not giving him any warning or signal of danger, and in passing said passenger train over said crossing so recently before the said train and locomotive which struck and injured appellant; that appellant had good sight but was somewhat deaf prior to the injury; that his horses were not afraid of cars, and could have been and were controlled, and he could have turned around in Main street before reaching the crossing.

That on the said 15th day of September, 1891, and for more than eight years prior thereto, there had been in full force and effect in said city of Danville, Illinois, an ordinance requiring appellee to keep a flagman at the crossing on Main street, where appellant was injured, whose duty it was to signal and warn any person traveling in the direction of said crossing of the approach of any locomotive, car or train of cars, or other impending danger; that on said 15th day of September, and for more than ten years prior to that time, there was in full force and effect in the State of Illinois a statute which provided, that if any train, locomotive engine or car be run at a greater rate of speed in or through the incorporated limits of any city, town or village, than is permitted by any ordinance of such city, town or village, such railroad company shall be liable to the person aggrieved for all damages done the person or property by such train, locomotive engine or car, and the same shall be presumed to have been done by the negligence of said railroad company; that at the time said injury was inflicted, and for eight years prior thereto, there was in full force and effect in said city of Danville an ordinance providing that no locomotive engine, freight or passenger car, or train, shall be run within the limits of said city at a greater rate of speed than ten miles an hour; that the proof did not show that appellant had any actual knowledge of the existence of said ordinance, or either of them.

It is earnestly insisted by appellant, that he exercised all care required of him under the circumstances, in approaching the crossing, and was not guilty of contributory negligence.

On the other hand, appellee contends that as appellant, after he came within 100 feet of crossing, had an unobstructed view of the track looking north a distance of 345 feet, which increased as he approached the track to 1,280 feet, at thirty feet from the track, and a quarter of a mile at twelve feet from the track, he was guilty of negligence in not looking in that direction; that if he had looked he could have seen.

The rule in this state is that, when a person crossing a railroad track is injured by a collision with a train, the fault is prima facie his, and he must affirmatively show that his fault or negligence did not contribute to the injury, before he is entitled to recover for such injury. Hathaway v. Toledo, etc., R. W. Co., 46 Ind. 25; Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39, 34 N.E. 714.

It is settled law in this jurisdiction, that when one approaches a point where a highway crosses a railroad track on the same level, it is his duty to proceed with caution, and if he attempts to cross the track, either on foot or in a vehicle of any kind, he...