Stevens v. Norfolk & W. Ry. Co., 2-775A166

• Decision Date: 24 November 1976
• Docket Number: No. 2-775A166,2-775A166
• Citation: 357 N.E.2d 1,171 Ind.App. 334
• Parties: Raymond J. STEVENS, Appellant (Plaintiff Below), v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1

357 N.E.2d 1

171 Ind.App. 334

Raymond J. STEVENS, Appellant (Plaintiff Below), v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellee (Defendant Below).

No. 2-775A166.

Court of Appeals of Indiana, First District.

Nov. 24, 1976.

Rehearing Denied Jan. 19, 1977.

Michael J. Stapleton, Ball, Eggleston, Bumbleburg & McBride, Lafayette, for appellant.

Russell H. Hart, James V. McGlone, John H. Carlson, Stuart, Branigin, Ricks & Schilling, Lafayette, for appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE:

The instant case was transferred from the Second District to this office in order to lessen the disparity in caseloads among the Districts.

Plaintiff-appellant, Raymond J. Stevens (Stevens), brought suit against defendant-appellee, Norfolk and Western Railway Company (N&W) claiming, inter-alia, that they were negligent in failing to provide adequate warning devices at a railroad crossing where Stevens' vehicle collided with N&W's train. Following a verdict in favor of N&W, Stevens perfected this appeal.

We reverse.

FACTS:

The facts necessary for our disposition of this appeal are as follows: On January 14, 1973, Stevens' automobile struck the side of N&W's westbound switch engine as he was driving north on County Road 250 East in Lafayette, Indiana. The railroad crossing where the collision occurred was not provided with any special warning devices (watchman, lights or bells) other than the cross-buck sign prescribed by statute. On November 26, 1974, the trial court sustained N& W's motion for partial summary judgment finding in pertinent part as follows:

'The Court finds, and the parties have so stipulated during argument of counsel, that the railroad crossing in question has not been designated by the Public Service Commission as a dangerous or extra hazardous crossing, and that as a matter of law the defendant was not required to install any automatic train-activated warning signal or crossing safety devices other than those prescribed by statute. It is ordered, adjudged and decreed that the railroad crossing in question was not dangerous or extra hazardous at the time of the incident out of which plaintiff's complaint arose, as that term is defined by the Public Service Commission of Indiana, and therefore, the defendant was not required to install any automatic train-activated warning signals or crossing safety devices other than those prescribed by statute.'

ISSUE:

1. Did the trial court err in finding as a matter of law that a railroad crossing cannot be extra hazardous, hence, a railroad is under no duty to equip the railroad crossings with warning devices other than those required by statute, unless the Public Service Commission of Indiana so specifies?

DISCUSSION AND DECISION:

IC 1971, 8-6-7-1 (Burns Code Ed.) provides as follows:

'Extra-hazardous grade crossings.--The public service commission of Indiana shall have the exclusive power and it shall be its duty, upon proper petition by any five (5) or more citizens of this state or the board of county commissioners of any county of this state to conduct a hearing to declare as dangerous or extra hazardous any grade crossing in this state which said commission shall find to be of such a character as that the safety of the users of such highway requires the installation of automatic train-activated warning signals or other crossing safety devices.

Such petition, hearing and all proceedings thereon shall be had in conformity with the law governing petitions, hearings and proceedings before said commission in regard to rates and service of public utilities.'

N&W argue that the statute cited above vests exclusive power in the Public Service Commission of Indiana to determine when a railroad crossing is extra hazardous and warrants additional warning devices other than those required for railroads pursuant to statute. ¹ Therefore, N&W continues by arguing that the trial court did not err in removing from the jury the possibility of finding it negligent solely because of its failure to equip the railroad crossing with warning devices not required by statute regardless of how they were operating their train prior to the collision with Stevens. In addition to IC 1971, 8-6-7-1, supra, N&W cite as principal authorities for their position the cases of Terre Haute, I. & E. Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740 and Tyler v. Chicago & eastern Illinois Railway (1961), 241 Ind. 463, 173 N.E.2d 314. As N&W properly contend these cases can be cited for the proposition that it is not within the province of the jury to determine when a grade crossing becomes extra hazardous and requires additional warning devices other than those mandated by statute to adequately protect the public using our highways. We are of the opinion that such is not the law in Indiana today.

In Central Indiana Railway Comapny v. Anderson Banking Company (1969), 252 Ind. 270, 247 N.E.2d 208, our Supreme Court had on opportunity to implicitly sanction their prior holdings in Terre Haute, I. & E. Traction Co. v. Phillips and Tyler v. Chicago & Eastern Illinois Railway, supra, by denying appellant's petition for rehearing following the denial of his petition to transfer of Central Indiana Railway Company v. Anderson Banking Company (1968), 143 Ind.App. 396, 240 N.E.2d 840 without opinion. Rather, the Supreme Court speaking through Justice Arterburn saw fit to take the opportunity to announce a departure from existing Indiana law. The departure was announced at pp. 210-211 as follows:

'The majority rule is given in 24 A.L.R2d 1169, 1170:

'The doctrine prevailing in most jurisdictions, as the later cases show, is that where there is evidence that the particular crossing, either because of its more or less permanent features or because of circumstances existing and affecting its use at the given time, was more than ordinarily hazardous, a question for the jury or the trier of facts is usually presented as to whether or not reasonable care on the part of the railroad required it to provide a flagman to warn of approaching trains.

'On the other hand, in the absence of evidence of more than ordinary hazard attending public use of the crossing, there is, according to the doctrine generally laid down, no basis for the contention that the railroad company was under any duty to provide a flagman.'

Indiana has within the last few years showed a tendency to move away from the strict adherence to the minority view and toward the modern view. In Budkiewicz v. Elgin, Joliet, and Eastern Ry. Co. (1958), 238 Ind. 535, 150 N.E.2d 897, this Court stated the general rules that a driver of a car is not bound under an absolute rule to see every object of danger in or on the highway and could therefore recover from the railroad for damages incurred when a vehicle driven by him collided with a 'cut of cars' standing on the railroad where it intersected the public highway. The concurring opinion construed the decision as placing railroads under the same duty to use due care as it placed upon motorists using the highways. The...