Snyder v. New York Cent. R. Co.

• Decision Date: 26 March 1935
• Docket Number: No. 14834.,14834.
• Parties: SNYDER v. NEW YORK CENT. R. CO.
• Court: Indiana Appellate Court

101 Ind.App. 258

194 N.E. 796

SNYDER

v.NEW YORK CENT. R. CO.

No. 14834.

Appellate Court of Indiana, in Banc.

March 26, 1935.

Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.

Action by William Snyder against the New York Central Railroad Company. From a judgment for defendant and an order overruling plaintiff's motion for new trial, plaintiff appeals.

Affirmed.

Walter R. Arnold, of South Bend, for appellant.

Bertrand Walker, of Chicago, Ill., and G. A. Farabaugh and L. C. Chapleau, both of South Bend, for appellee.

CURTIS, Judge.

This is an action by appellant against the appellee for the alleged wrongful death of appellant's infant son.

On the 27th day of January, 1931, the appellant's seven year old son, Darrell Snyder, was killed by an east-bound passenger train of the appellee at what would be the crossing of a north and south street known as Baker street and the appellee's railroad tracks in the city of Mishawaka, Ind., had said Baker street been extended south over said tracks.

For upwards of four years next prior to, and up to the time of the accident, this conjunction at Baker street had been continuously used to cross over appellee's tracks by pedestrians, particularly school children, during the school sessions, attending LaSalle School, which was situated south of the railroad tracks and west of Baker street. Up to some four years next prior to the accident, the way across the tracks had been barred by a wire strung across the north line of appellee's right of way at Baker street. This wire had been removed and rolled up on either side of two paths leading up to the tracks on Baker street, and a “No trespassing” sign had been placed by the railroad company at its north right of way line in Baker Street. Three tracks were maintained by the appellee at this conjunction-the northernmost track was the west-bound main track, the middle track was the east-bound main track, and the southernmost a switch track-all parallel to each other and approximately 8 feet apart.

The deceased, with two other lads, were on their return to the LaSalle School from their homes about a block north of the conjunction, after the noon hour on a clear day, and paused at the switch track of the appellee while a west-bound freight train was crossing Baker street, and the deceased and the smaller of the two boys pelted the passing freight train with pebbles, standing on the side track south of the east-bound main track. While the deceased was stooping over for a pebble, in the vicinity of the switch track at this conjunction, the east-bound passenger train locomotive on the middle track struck and killed him. The passenger train consisted of eight coaches and its length was approximately 320 feet, and the train continued 400 feet after it struck the deceased.

For several years there had been a basket ball standard at the conjunction of Baker street with appellee's north right of way line at the opening made by the rolled up fence. Children in the neighborhood congregated thereabout and played and watched the play of basket ball and baseball. The standard had been later moved to the west a little, but the immediate surroundings north of the appellee's right of way line were continuously used for recreation. A public alley, immediately south of the railroad right of way and paralleling it, was connected with Baker street by the paths aforesaid.

The appellant brought this action in three paragraphs. The first paragraph was predicated upon the appellee's failure to sound warning signals, and operating the train at a speed in excess of the speed fixed by an ordinance of said city; the second paragraph was based upon careless operation of appellee's train through a playground permitted to be used as such by the appellee, in the vicinity of the right of way, and the failure of appellee in the operation of its train to watch for children using the grounds for that purpose; the third paragraph of complaint was founded on the doctrine of “last clear chance,” the perilous position of the infant, the knowledge of the appellee, and failure to stop its train before striking him. The complaint was answered in general denial and the cause submitted for trial before a jury.

At the conclusion of the appellant's evidence in chief, the court directed the jury to return a verdict for the appellee, to which action of the court the appellant excepted, and a verdict was rendered according to the direction. Judgment on the verdict was followed by a motion for a new trial. This motion was overruled, and from that ruling this appeal is prosecuted.

The sole error assigned is that the trial court erred in overruling the appellant's motion for a new trial, and upon that action of the court the appellant relies for reversal on each of the grounds set forth in the motion. The causes or grounds of the motion may be summarized as follows: (1) Error in directing the jury at the conclusion of appellant's case to return a verdict for the appellee. (2) The verdict of the jury not sustained by sufficient evidence and contrary to law. (3) Error of the court in the trial of the cause in striking from the record and withdrawing from the consideration of the jury certain items of evidence given by the appellant. (4) Error of the court in rejecting certain items of evidence offered by the appellant.

The first paragraph of the complaint alleged in substance: That on January 27, 1931, the appellee operated a railroad through the city of Mishawaka, Ind., which crossed Baker street; appellant's infant son, Darrell Snyder, age seven years, while in the act of crossing said railroad of the appellee at South Baker street crossing, was killed by appellee's negligent, careless, and reckless operation against said child of a passenger train operated on said track, traveling at a speed in excess of 25 miles per hour, without making any signal or warning of its approach, and in violation of section 109 of the ordinances of the city of Mishawaka, Ind., providing that “no person shall run a locomotive or steam railway car faster than twenty-five miles per hour within the city of Mishawaka,” thereby mangling the body of said child and killing him, to appellant's damage in the sum of $10,000.

The second paragraph of the complaint alleged the same facts aforesaid and that at or near the crossing of the street with appellee's tracks, appellee had, on the 27th day of January, 1931, and for some time prior thereto, permitted the maintenance of a basket ball standard at said crossing, which induced and attracted boys to be at such place, and the appellee knew, or should have known, that children were gathering and playing under the standard and near said crossing at said time and of the danger from passing trains to children congregating about said basket ball standard; that appellant's decedent was attracted to said standard, and unappreciative of the dangers attendant upon his being there, and the appellee knowing of the attraction of children in and about the standard and at such crossing, without making any effort to discover whether children were playing and gathering in and about said crossing, failed to keep a reasonable lookout to discover the appellant's decedent and ran its engine and cars upon and over said infant, crushing out its life, to appellant's damage in the sum of $10,000.

The third paragraph of the complaint averred the same facts mentioned in the first paragraph alleging also that while said infant was crossing the tracks of appellee at Baker street in the city of Mishawaka, the appellee approached the said crossing without sounding any whistle or ringing any bell, without giving any warning, at a speed in excess of the 25 miles per hour as fixed by the ordinance, and failed to have a flagman or signs or signals or give warning of any nature at said crossing, and said infant met its death at said crossing because of failure to sound said signals; that to appellee's knowledge a large number of children habitually used said crossing and in the circumstances the appellee was required, in the exercise of prudence, to maintain some signal device of some sort to give warning and notice to people particularly infants traveling in, over, and about said crossing of the approach of trains and over and toward the same; that at said point where said railroad crossed said South Baker street, men, women, and children were constantly walking, passing, and repassing along and over appellee's railroad track, and by reason thereof required the appellee, in the exercise of care, to keep a reasonable lookout for such persons as might reasonably be expected to be on, or dangerously near to, and about the said crossing and about its tracks near said crossing, to discover and avoid injuring such persons; that said decedent was upon, along, or across the aforesaid portion of said railroad tracks, at or near the intersection of South Baker street, in a position of danger with respect to appellee's train then approaching said crossing, and notwithstanding the appellee, in the exercise of ordinary prudence, care, and judgment, should have seen that the said infant was not able to extricate himself from a perilous position in which he was then placed, and that if appellee continued to proceed with said train, the said train would come in contact with and strike said infant, the appellee proceeded with said steam engine and train and had full, continuous, nonobstructed view of said infant upon said railroad track and after the said infant was dangerously near to and getting upon the same, and continued to proceed with said engine and train and carelessly and negligently failed to discharge its duty aforesaid, and used no care whatsoever, but continued to proceed with said engine and train toward said infant, the said infant being plainly visible to said appellee, the said engineer continued to proceed with said engine at more than 25 miles per hour, with the infant in plain...