Southern Indiana Ry. Co. v. Drennen

• Decision Date: 02 June 1909
• Docket Number: No. 6,613.,6,613.
• Citation: 44 Ind.App. 14,88 N.E. 724
• Parties: SOUTHERN INDIANA RY. CO. v. DRENNEN.
• Court: Indiana Appellate Court

44 Ind.App. 14

88 N.E. 724

SOUTHERN INDIANA RY. CO.

v.DRENNEN.

No. 6,613.

Appellate Court of Indiana, Division No. 1.

June 2, 1909.

Appeal from Circuit Court, Clay County; John M. Rawley, Judge.

Action by George W. Drennen against the Southern Indiana Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hamil & Taylor, S. M. McGregor, and Orion B. Harris, for appellant. George A. Knight and Foley & Rayse, for appellee.

HADLEY, C. J.

Appellee instituted this suit against appellant to recover damages for the negligent killing of Elmer Drennen, a son, under the age of 21 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 Thirteenth and One-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, said vehicles and pedestrians constantly passing along said street across said tracks; that from said intersection south said track runs to the southwest, and about 20 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 40 feet west of said track, the view to the southeast, or towards said track, is obstructed by sheds, buildings, and trees and high fences for the whole distance to Thirteenth and One-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 40 feet of said track. The complaint specifically describes these various obstructions and their location. It is then averred: That on the 2d day of July, 1905, said Elmer Drennen was driving a horse attached to an open delivery wagon along College street from the west towards said track, about 11 o'clock a. m.; 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 or 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 20 feet of said track; that when he reached this point he saw the engine of appellant coming from the south and about 100 feet distant; that he was unable to stop the horse in time to avoid said engine; that said engine ran against said horse and 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 20 feet of the track; that said engine was running at the rate of 25 miles an hour within the limits of the city of Terre Haute, in violation of an ordinance limiting the speed of trains to 5 miles an hour; that it did not sound the whistle within 100 rods, nor ring the bell within 200 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 and in failing to blow the whistle of said engine at any time within 100 rods of said crossing, and in failing to ring the bell. An ordinance limiting speed of engines and trains, in force in the city of Terre Haute, 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 above, except that the second paragraph contains an averment that, when deceased was able to see along said track, he saw appellant's train approaching about 150 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 said crossing safe, and averring 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, 24 Ind. App. 680, 57 N. E. 555;Van Winkle v. N. Y., etc., Ry. Co., 34 Ind. App. 476, 73 N. E. 157. But the facts averred in either paragraph of the complaint before us failed to show any such negligence. It is averred that he 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 might run its trains as recklessly as it pleased, and without regard to the law or the ordinance of said city, or suffer the consequence without recourse, would amount to substantially a vacation of the street and the surrender of a public highway to private uses. Appellee's deceased 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 others who might be crossing its tracks on a frequently traveled highway. Cleveland, etc., Co. v. Lynn (Ind.) 85 N. E. 999; Baltimore, etc., Ry. Co. v. Conoyer, 149 Ind. 524, 48 N. E. 352, 49 N. E. 452. Ordinarily a person would be in no danger from a train traveling at a rate not to exceed 5 miles an hour and ringing the bell, as the statute required, 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 20 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 deceased drove upon the track when the train was from 100 to 150 feet away; that his horse became unmanageable, and he was unable to get off of the track on account thereofbefore 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 deceased, if he had made use of all of the agencies within his power to do so, and 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. Ry. Co. v. Marschke, 166 Ind. 490, 77 N. E. 945;Southern Ind. R. R. Co. v. Fine, 163 Ind. 617, 72 N. E. 589;Crowley v. Burlington, etc., R. Co., 65 Iowa, 658-663, 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: “It is not claimed that this instruction is an incorrect statement of the law, but it is insisted that there is neither averment nor proof that the defendant could have prevented the injury after the discovery of plaintiff's negligence. We do not think such an allegation is necessary to be made in the petition. It is a phase of the rights and obligations of the parties which arises upon the proofs rather than by pleading. We know of no rule of pleading which requires the plaintiff in actions of this character to confess negligence on his part, and avoid it by alleging that the defendant might have averted the injury by using proper care after the discovery of plaintiff's peril. The objection that there was no evidence to support the instruction does not appear to us to be well taken.”

There is a general averment in each the first and third paragraphs 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 deceased and his inability to extricate himself, could have stopped his train and avoided the injury, and each requested the court to submit to the jury the law on the question of the last clear chance, and the court gave one instruction asked for by the appellee and one asked for by the appellant presenting the legal rules from the view point of each of said parties, as applied to said...