Stazinski v. New York Cent. R. Co.

• Decision Date: 13 October 1966
• Docket Number: No. 1,No. 20271,20271,1
• Parties: William S. STAZINSKI, by next friend, Elsie Stazinski, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee
• Court: Indiana Appellate Court

Page 537

220 N.E.2d 537

140 Ind.App. 234

William S. STAZINSKI, by next friend, Elsie Stazinski, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee.

No. 20271.

Appellate Court of Indiana, Division No. 1.

Oct. 13, 1966.

Rehearing Denied Dec. 5, 1966.

[140 INDAPP 234] Saul I. Ruman, of Sachs, Ruman, Tanasijevich, Smith & Donnersberger, Hammond, and Charles E. Dautherty and William J. Regan, Gary, for appellant.

Richard O. Olson, Chicago, Owen W. Crumpacker, Harold Abrahamson, Richard P. Komyatte, Crumpacker & Abrahamson, Hammond, for appellee.

CARSON, Judge.

This appeal involves an accident between an automobile driven by William Stazinski, father of plaintiff-appellant, and a train operated by defendant-appellee at a public railroad crossing in Gary, Indiana. Plaintiff-appellant alleged four acts of negligence in that the defendant-appellee operated its train:

(1) At a high and dangerous rate of speed, to wit: sixty (60) miles per hour.

(2) Without proper warning of its approach, either by lowering gates, a crossing attendant, flashers, bells, or whistles.

[140 INDAPP 236] (3) Without maintaining proper control of the train.

(4) Without maintaining a proper lookout for vehicles crossing the railroad tracks which resulted in bodily injury to the plaintiff-appellant.

By defendant-appellee's tendered instructions given by the court to the jury, the court limited plaintiff-appellant's grounds for recovery to the negligent operation by defendant-appellee of the flasher signals at the railroad crossing at which the accident occurred.

The record discloses tht among the instructions given by the trial court were defendant's Instructions No. 14 & No. 15, which reads as follows:

DEFENDANT'S INSTRUCTION NO. 14

'The Court instructs you that the plaintiff's complaint alleges and the evidence shows that there were flasher lights and bell signals located at the crossing of the defendant's tracks and Broadway Avenue in the City of Gary, Indiana. The Court instructs you that there was no duty on the part of the defendant railroad to provide another or different type or crossing protection at this intersection.'

'The Court instructs you that the mere fact that the flasher lights located at the intersection of Broadway and the defendant's railroad track may have failed to operate, if you find that they so failed to operate, such failure of the lights to operate is not of and in itself negligence on the part of the defendant New York Central Railroad Company. Before the defendant New York Central Railroad Company can be found negligent for the failure of such flasher lights to operate, if you find that such flasher lights failed to operate, you must first find that the defendant New York Central Railroad Company failed to use reasonable care in some particular in failing to maintain, repair, or inspect the signals. In other words, the defendant New York Central Railroad cannot be held liable if the flasher lights located at the intersection failed to operate unless it failed to use due care in maintaining, repairing or inspecting the signals and such failure to use due care was the proximate cause of the plaintiff's injuries.'

[140 INDAPP 237] DEFENDANT'S INSTRUCTION NO. 15

'Before the defendant New York Central Railroad Company can be found to be negligent for the failure of the flasher lights located at the intersection of Broadway and its railroad tracks in Gary, Indiana, to work, you must first find that the defendant New York Central Railroad Company knew or in the exercise of reasonable care should have known that the flasher lights located at the intersection were not operating properly.'

'The Court instructs you that if the flasher lights located at the intersection failed to operate without fault on the part of the defendant New York Central Railroad Company and that the defendant railroad company did not know, or in the exercise of reasonable care could not have known, that the flasher lights were not operating properly, then the defendant New York Central Railroad Company cannot be held liable for negligence by reason of the failure of such flasher lights to operate, if they did so fail to operate.'

While there were objections by the plaintiff-appellant to these two instructions at the trial, said objections have not been perfected in this appeal.

After trial by jury, verdict was for the plaintiff-appellant, upon which the court rendered consistent judgment.

At the conclusion of the case, interrogatories were submitted to the jury and attention is directed particularly to Interrogatory No. 5 which reads as follows: 'Was the flasher light on the north side of the railroad track in operation at 9:30 A.M. on April 5, 1961?' To this interrogatory the jury answered, 'Yes.'

Defendant-appellee moved for a new trial on December 28, 1962. A new trial was granted on June 9, 1964; the reasons for granting the new trial were not set forth by the trial judge. At appeal was perfected to this court by plaintiff-appellant; the errors assigned all deal with the granting of the motion for a new trial and the reasons for granting said motion.

This court, on March 18, 1966, ordered that the final determination of this case be held in abeyance and that the [140 INDAPP 238] same be temporarily remanded to the trial court with instructions to the court to enter upon the trial docket a statement setting forth with particularity the specific reasons upon which the decision to sustain the motion for a new trial was predicated. See Stazinski v. New York Central Railroad (1966), Ind.App., 214 N.E.2d 799.

The reasons given by the trial judge for granting the motion for a new trial are...