Southern Indiana Railway Company v. Drennen
| Decision Date | 02 June 1909 |
| Docket Number | 6,613 |
| Citation | 88 N.E. 724,44 Ind.App. 14 |
| Parties | SOUTHERN INDIANA RAILWAY COMPANY v. DRENNEN |
| Court | Indiana Appellate Court |
From Clay Circuit Court; John M. Rawley, Judge.
Action by George W. Drennen against the Southern Indiana Railway Company. From a judgment on a verdict for plaintiff for $ 1,200, defendant appeals.
Affirmed.
Hamill & Taylor, S. M. McGregor and Orion B. Harris, for appellant.
George A. Knight, Peter M. Foley and Samuel D. Royse, for appellee.
Appellee instituted this action against appellant to recover damages for the negligent killing of Elmer Drennen, a son under the age of twenty-one years. The complaint is in three paragraphs, the first of which avers that the railway line of appellant crosses College street, in the city of Terre Haute, between Thirteen-and-a-half street and Fourteenth street; that the street and tracks are at the same grade at said crossing; that said street is a public street traveled over by a large number of vehicles and pedestrians, and said vehicles and pedestrians are constantly passing along said street across said tracks; that from said intersection south said track runs to the southwest, and about twenty feet south of said intersection said track makes a sharp curve to the west; that along the south side of said street, from a point forty feet west of said track, the view to the southeast, or towards said track, is obstructed by sheds, buildings, trees and high fences, for the whole distance to Thirteen-and-a-half street; that it was difficult for a person traveling along said College street to hear a train, and it was impossible to see said train until such person arrived within forty feet of said track. The complaint specifically describes these various obstructions and their locations.
It is then averred that on July 2, 1905, about 11 o'clock a. m., said Elmer Drennen was driving a horse attached to an open delivery wagon along College street from the west towards said track; that he was driving carefully and slowly; that as he approached said track he looked and listened for an approaching train, but did not see nor hear any train or engine approaching; that he was unable to see towards the southeast, on account of the obstructions described, until he was within twenty feet of said track; that when he reached this point he saw, at about one hundred feet distant, the appellant's engine coming from the south, but he was unable to stop the horse in time to avoid said engine; that said engine ran against said horse, threw said Drennen against the engine, and injured him so that he died the next day. It is averred that he did not see or hear said engine until he was within twenty feet of the track; that said engine was running at the rate of twenty-five miles an hour within the limits of the city of Terre Haute, in violation of an ordinance limiting the speed of trains to five miles an hour, and that it did not sound the whistle within one hundred rods, nor ring the bell within two hundred yards of said crossing; that the injury to Elmer Drennen was caused by the wrongful and negligent acts of appellant in running said engine within said limits of the city of Terre Haute at a high and dangerous rate of speed, in failing to blow the whistle of said engine at any time within one hundred rods of said crossing, and in failing to ring the bell. An ordinance in force in the city of Terre Haute, limiting the speed of engines and trains, is properly averred.
It is then averred that, by reason of the careless and negligent acts of the appellant, appellee has been damaged. Prayer for judgment.
The second and third paragraphs of the complaint are the same as the first, except that the second paragraph contains an averment that when decedent was able to see along said track, he saw appellant's train about one hundred fifty feet distant; that he then attempted to stop his horse and turn it so as to avoid said engine, but the horse became so frightened that it was unmanageable, and approached so closely to the track that the engine struck it.
The third paragraph contains the additional averment showing the dangerous nature of the crossing, and averring that it was necessary to maintain a watchman at said crossing to make it safe, and that no watchman was maintained there. Appellant filed a general demurrer to each of said paragraphs, and each of said demurrers was overruled. These rulings are assigned as error.
The only objection urged against the complaint is that the facts specifically averred in each paragraph of the complaint show that decedent was contributorily negligent. It is true, as appellant insists, that, where the special facts, stated in the complaint to recover for an injury to the person, show that the plaintiff was himself guilty of negligence that materially contributed to his injury, the complaint is bad on demurrer. Wolfe v. Peirce (1900), 24 Ind.App. 680, 57 N.E. 555; Van Winkle v. New York, etc., R. Co. (1905), 34 Ind.App. 476, 73 N.E. 157.
But the facts averred in each paragraph of the complaint before us fail to show any such negligence. It is averred that decedent was proceeding slowly and carefully, and was on the alert, looking and listening. That he could neither see nor hear the train, under the averments of the complaint, was not his fault, but was the fault of appellant. To hold that the citizens of Terre Haute who desire to pass along College street and over the tracks of appellant are required, in so doing, to exercise greater diligence than to move slowly and carefully, looking and listening in order that the appellant may run its trains as recklessly as it pleases, and without regard to the law or the ordinance of said city, or suffer the consequences without recourse, would amount substantially to a vacation of the street and the surrender of a public highway to private uses. Appellee's decedent had a right to rely upon the presumption that appellant would run its trains according to the law and with proper regard to the safety of persons who might be crossing its track on a frequently traveled highway. Cleveland, etc., R. Co. v. Lynn (1909), 171 Ind. 589, 85 N.E. 999; Baltimore, etc., R. Co. v. Conoyer (1898), 149 Ind. 524, 48 N.E. 352.
Ordinarily a person would be in no danger from a train traveling at a rate not to exceed five miles an hour and ringing the bell, as the statute requires, if he approach said crossing slowly and carefully, looking and listening, even though, on account of obstructions, he could neither hear distinctly, nor see down the track until he was within twenty feet of such track.
Each paragraph of the complaint was good as against the objection urged in support of the demurrer. Upon the trial of the cause, it appeared from the evidence that the decedent drove upon the track when the train was from one hundred to one hundred fifty feet away; that his horse became unmanageable, and he was unable to get off the track before the train struck him; that the engineer saw him on the track and in his dangerous position when 150 feet away, and might have stopped his train before striking decedent, if he had made use of all of the agencies within his power. Upon the request of both appellant and appellee, the court instructed the jury upon the question of the last clear chance. It is urged by appellant, under the ruling on the motion for a new trial, that the instructions given by the court on the doctrine of the last clear chance were erroneous, and the evidence was insufficient to support the verdict on this theory, for the reason that this question was not presented by the pleadings, it being asserted that there is no averment in the complaint which would present such an issue upon a general denial. It would appear that the averments of the complaint were sufficient to present this question under the decisions in the cases of Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490, 77 N.E. 945, Southern Ind. R. Co. v. Fine (1904), 163 Ind. 617, 72 N.E. 589, and Crowley v. Burlington, etc., R. Co. (1885), 65 Iowa 658, 664, 20 N.W. 467, 22 N.W. 918.
In the case last cited the court instructed the jury as to the doctrine of the last clear chance. The objection was made as here. The court say:
There is a general averment in the first paragraph, and also in the third, that the injury to appellee was caused by the negligent acts of appellant. This averment is entirely disconnected from the averments of specific negligence.
In our view of the case, however, it is unnecessary for us to decide this question, since it is apparent from the record that on the trial of said cause both appellant and appellee treated the question as though it were involved, and without a suggestion to the contrary. Each, without objection introduced testimony seeking to prove or disprove, respectively, that the engineer, after discovering the perilous condition of decedent, and his inability to extricate himself, could have...
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