Southern Ry. Co. v. Ingle
| Decision Date | 04 December 1946 |
| Docket Number | 17492. |
| Citation | 69 N.E.2d 746,117 Ind.App. 229 |
| Parties | SOUTHERN RY. CO. v. INGLE. |
| Court | Indiana Appellate Court |
Appeal from Warrick Circuit Court; Henry Clay Lynn, Special Judge.
Action by Estella Mae Ingle, administratrix of the estate of Gaylord W. Ingle, deceased, against Southern Railway Company to recover for the death of decedent resulting from a railway crossing collision. The jury returned a verdict for plaintiff for $7,575, and, from the judgment entered thereon, defendant appeals.
Affirmed.
Darby & Fitzgerald, of Evansville, Caleb J Lindsey, of Boonville, and S. R. Prince and H. G. Hedrick both of Washington, D. C., for appellant.
Edgar Durre and Vincent A. Jahn, both of Evansville, and Leslie Hendrickson, of Boonville, for appellee.
Appellee brought this action against appellant for damages for the death of her decedent resulting from a collision when a truck operated by decedent collided with appellant's train at a grade crossing. The jury returned a verdict for $7575. Judgment on the verdict.
This is the second appeal in this case. In the first appeal the appellant herein appealed to this court from a judgment against it for $6166.67. In that appeal appellant's assignment of errors contained six grounds, including the overruling of its motion for a new trial which motion presented nine specifications for our consideration. We affirmed the judgment of the trial court. On appellant's petition the cause was transferred to the Supreme Court who reversed the judgment of the trial court. Southern Railway Company of Indiana et al. v. Ingle, 1945, Ind., 60 N.E.2d 135. The Supreme Court considered only one specification of the motion for a new trial. It related to the reading in evidence of the deposition of a witness for appellee. It was held error to permit the reading of such deposition because it was not shown the witness did not live in the county or in an adjoining county to the one in which the trial was held, as provided by § 2-1506, Burns' 1933. The question there decided is not before us in this appeal.
At the outstart we are confronted with appellee's contention that our opinion in the first appeal on all questions not considered by the Supreme Court established the law of this case. To support her contention appellee relies, among others, on the cases of Alerding et al., Executors, v. Allison. 1907, 170 Ind. 252, 83 N.E. 1006, 127 Am.St.Rep. 363; Westfall v. Wait et al., 1905, 165 Ind. 353, 73 N.E. 1089, 6 Ann.Cas. 788; Ohio Valley Trust Company v. Wernke, 1913, 179 Ind. 49, 99 N.E. 734. Those cases are clearly distinguishable on the question raised by appellee in this case. In each of those cases there was no transfer to the Supreme Court from our decision on the first appeal. It is true, as stated by appellee, that the principles of law established on a former appeal, so far as applicable, remain the law of the case in subsequent appeals. However, this is not true of decisions of this court in cases which are transferred to the Supreme Court. When the Supreme Court transfers a case decided by this court our decision is set aside, vacated and expunged from the record and the case stands as though it had been appealed directly to the Supreme Court. Payne v. Terre Haute and Indianapolis Railway Company, 1901, 157 Ind. 616, 62 N.E. 472, 56 L.R.A. 472; Princeton Coal & Mining Co., et al. v. Gilmore, 1908, 170 Ind. 366, 83 N.E. 500; Kraus v. Lehman et al., 1907, 170 Ind. 408, 84 N.E. 769, 15 Ann.Cas. 849. Therefore our opinion in the first appeal cannot be considered as the law of this case.
The principal questions presented by this appeal relate to the applicability of the doctrine of last clear chance. This doctrine means simply that where the negligence of the defendant is the proximate cause of the injury for which suit is brought, and that of the plaintiff only the remote cause, the plaintiff may recover. Indianapolis Traction & Terminal Co. v. Kidd, 1906, 167 Ind. 402, 79 N.E. 347, 7 L.R.A.,N.S., 143, 10 Ann.Cas. 942. It is a negligent failure to avoid a discovered peril. Terre Haute, Indianapolis and Eastern Traction Company v. Stevenson, 1920, 189 Ind. 100, 109, 123 N.E. 785, 126 N.E. 3.
In 44 Am.Jur. p. 788, § 539, it is stated: 'The general rule is that the contributory negligence of a person who was struck by a train at a crossing does not bar a recovery against the railroad company for the death or injury thus sustained, if the employees of the railroad company in control of the train, having discovered him in a position of obvious peril in time to have pervented the accident by the exercise of reasonable care, failed to exercise such care to avoid injury to him' (Our emphasis.)
With this understanding of the doctrine of last clear chance we proceed to a consideration of the questions presented.
In the first three grounds of appellant's assignment of errors it complains of the overruling of its motion to make the amended complaint more specific, the overruling of its motion to require pleading of facts to support what is asserted are conclusions, and the overruling of its demurrer to the amended complaint.
Rhetorical paragraph 4 of the amended complaint descirbes the location and the condition at and near the grade crossing at which the accident occurred. Rhetorical paragraph 5 is as follows:
'Plaintiff further alleges that on the 8th day of July, 1941, at about the hour of four o'clock P.M., plaintiff's decedent, Gaylord W. Ingle, was driving and operating a large, heavy motor truck loaded with six (6) tons of crushed limestone rock, which contents extended above the sides of said truck and were visible to anyone for a distance of at least two hundred (200) yards; that plaintiff's decedent was operating said heavily laden truck down the grade on said state highway, hereinabove described, going west thereon and after he had reached a point on said highway going down said grade about five hundred (500) feet east of said railroad crossing, one of said defendants' trains, consisting of a steam engine, tender and freight cars, was approaching said highway crossing at a distance of about four hundred (400) feet and moving at a speed of about fifteen (15) to twenty (20) miles per hour, that there were no obstructions to prevent the agents of said defendant so operating said train from seeing said truck approaching said crossing; that because of the down grade over which said truck was traveling and the heavy load which it then bore, which is hereinabove set out, it was impossible for plaintiff's decedent to stop the same after reaching said point of five hundred (500) feet east of said crossing to avoid a collision with said train; that the agents of the defendants operating said train saw the truck which plaintiff's decedent was so operating, approaching said railroad crossing down the grade on said highway when it was approximately five hundred (500) feet east of said crossing and saw that it was loaded with rock and notwithstanding those facts, said agents after seeing plaintiff's decedent and the truck heavily loaded and approaching said crossing down said grade as hereinbefore alleged and knowing that he could not stop the same within the time that said train would reach said crossing, said defendants' agents negligently and carelessly failed and refused to slow up the speed of said train although said train was far enough away from the said crossing as hereinbefore alleged to avoid a collision if they had applied the brakes to the same and instead of applying the brakes to said train, said agents continued the operation of said train on toward said crossing and collided with said truck; plaintiff's said decedent being unable to stop his truck within the space after seeing said train and in an effort to avoid a collision with said train, turned the same sharply to the south, but by reason of the negligence of the defendants' agents as aforesaid, said train collided with the side of said truck and turned it over on its side causing it to become ignited, and it burst into flames while said plaintiff's said decedent was still entrapped in the cab thereof, causing the immediate death of the plaintiff's decedent'.
By its motion to make more specific, appellant sought to require appellee to plead evidentiary facts. The motion was properly overruled.
It is next contended the trial court erred in not requiring appellee to plead facts in support of the alleged conclusion contained in the following phrase: 'knowing that he could not stop the same within the time that said train would reach said crossing.' In our opinion sufficient facts are pleaded to support this allegation.
Appellant's demurrer was on the ground the amended complaint did not state facts sufficient to constitute a cause of action. We are of the opinion the averments in the amended complaint are sufficient to charge that appellee's decedent was in a position of peril from which he could not extricate himself; that appellant's agents saw his peril, knew he could not extricate himself; that they were far enough away from the crossing to avoid the collision if they had applied their brakes, etc. On the authority of the case of Terre Haute, Indianapolis and Eastern Traction Company v. Stevenson, 1920, 189 Ind. 100, 123 N.E. 785, 126 N.E. 3, the demurrer was properly overruled.
The fourth assigned error here is that the court erred in overruling appellant's motion for judgment on the answers of the jury to the interrogatories. In support of this assignment appellant correctly asserts the amended complaint proceeds on the theory that appellant was guilty of negligence under the doctrine of last clear chance. It contends the jury, in its answer to Interrogatory No. 11 found that the...
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