Terre Haute and Indianapolis Railroad Co. v. Graham

• Decision Date: 28 May 1883
• Docket Number: 6600
• Citation: 95 Ind. 286
• Parties: The Terre Haute and Indianapolis Railroad Company v. Graham
• Court: Indiana Supreme Court

95 Ind. 286

The Terre Haute and Indianapolis Railroad Company v. Graham

No. 6600

Supreme Court of Indiana

May 28, 1883

Petition for a Rehearing Overruled May 9, 1884.

From the Putnam Circuit Court.

The judgment is reversed, at the cost of appellee, with instructions to the court below to sustain the motion for a new trial.

J. G Williams, D. E. Williamson and A. Daggy, for appellants.

S Claypool, L. P. Chapin and J. McClary, for appellee.

OPINION

Zollars J.

In April, 1870, appellee, while walking upon the track of appellant, near Greencastle, was struck, and his leg broken, by one of its engines drawing a passenger train. In July, 1871, the complaint, in three paragraphs, which we find in the record, was filed in the court below. Appellant demurred to each paragraph, and moved to strike out portions of the third. The demurrer and motion were overruled, and appellant excepted. Issue was joined by the filing of a general denial; the cause was tried, and judgment rendered for the appellee. From this judgment appellant appealed to this court, where the judgment was reversed for want of sufficient evidence, and a new trial ordered. It was also held that there was no error in overruling the demurrer and motions to strike out. Terre Haute, etc., R. R. Co. v. Graham, 46 Ind. 239.

The case was retried upon the same issues, in May, 1875. The jury disagreed, and was discharged. In February, 1876, another trial was had upon the same issues, and resulted in a verdict, and, over a motion for a new trial, a judgment for $ 900 in favor of appellee.

From this judgment the appellant appealed, and filed the record in this court in October, 1877. The evidence, instructions, and motions to strike out portions of the complaint are in the record by bills of exceptions.

In this court, appellant has assigned for error the overruling of the demurrer to the complaint, and the motion for a new trial.

The first paragraph of the complaint states, substantially, that on the 27th day of April, 1870, appellant, by its agents and employees, so carelessly and negligently ran and managed a locomotive and train of cars on and along its track west from Greencastle, that without giving appellee any warning of the approach of said locomotive, etc., appellee, without fault on his part, was negligently and carelessly run upon, his leg broken, and otherwise injured, etc., to his damage, etc.

In the second paragraph, it is alleged, in substance, that on said day, appellee was walking upon and along the track of appellant, on the ends of the ties thereof, for the purpose of going from Greencastle to Greencastle Junction; that he did not know that a train was approaching him; that the employees of appellant well knew that he was on the track and in danger, yet the defendant, by its conductor, engineer and other employees, did then and there so carelessly and negligently run and manage a locomotive and train of cars, that without giving appellee warning of the approach of said locomotive, the said train was wilfully and purposely, and without any regard for the rights or life of appellee, with great force and violence run against appellee, without fault on his part, by means whereof his leg was broken, to his damage, etc.

In the third paragraph it is alleged, substantially, that the portion of appellant's road between the depot at Greencastle and Greencastle Junction had long been, and then was, used with the license and assent of appellant as a way for foot passengers to pass and repass, on and along; that appellee was passing on and over said portion of the road on foot, as he had been accustomed to do; that appellant, well knowing the premises, wilfully and purposely, and without any regard for the rights or life of appellee, with great force and violence, ran its train against and wounded him, without fault on his part, etc., to his damage, etc.

The following facts are established without conflict in the testimony: Commencing at a mile-post west of Greencastle, the railroad of appellant runs almost due west for about 1,700 feet, when it curves sharply to the south until it reaches what is known as McLain's Second Crossing, distant from the mile post 3,400 feet. Commencing at about 700 feet west of the mile-post, there is a knoll on the south side of, and adjoining, the track, five feet high above the track, and extending along the track for the distance of 500 feet and over. Adjoining, and south of the track, and commencing at about 1,350 feet from the mile-post, there is another knoll, extending along the track west about 400 feet, and six and one-half feet high above the track. The west end of this knoll is 1,700 feet west of the mile-post. About 600 feet west of said post there is an elevation on the north side of the track. In other words, as some of the witnesses say, the road runs through a cut at the points named. From the cut there is a down grade to the McLain crossing of from fifty to sixty feet to the mile. On the day of the injury to appellee, he passed the depot of appellant in Greencastle; saw people waiting for a train; "guessed it was about train time," but did not know which way the train was expected to go. It was a bright, sunny day, with a strong April wind from the west. Appellee started to walk on appellant's track from Greencastle to Greencastle Junction. The train which caused the injury consisted of an engine, tender, baggage and express cars, and three coaches. At this time air brakes were not in use, and the only means of stopping the train was by the application of hand brakes, and the reversal of the steam. The train was on time, passing over the road west, and running with the steam cut off, at the speed of about twenty-eight or thirty miles an hour. Upon the grade at and near where the collision occurred, the train, moving at its rate of speed, could not be stopped in a less distance than from 900 to 1,100 feet. After the appellee had passed over the track west a distance of 1,500 feet to the cut, he heard the whistle of the engine at the depot, and looked back twice to see if the train was coming. Moving from the center of the track, he continued walking upon the ends of the ties on the north side, not knowing that the train had time to overtake him. The train struck him about 350 feet west of the cut, or the knoll, on the south side of the track, farthest west. From this knoll to the point of collision, the track curves to the south about 100 feet. Before and at the time the train emerged from the cut, the fireman, whose place was on the south side of the engine as it was moving, was engaged in sweeping or cleaning the cab, and did not see appellee until after the collision by which appellee's leg was broken. The engineer, who occupied the north side as the train was running, did not see the appellee until after the train emerged from the cut, when it was about 300 feet from appellee. The engineer thought appellee turned, as if to look back, and moved farther towards the north end of the ties, yet seemed to be careless and unconscious of the approach of the train, or the danger, as if abstracted in thought, until struck by the train. A number of other persons in the immediate vicinity of appellee when injured, and others considerably further west, heard the whistle at the depot, and the noise of the train as it passed over the track until the collision, saw the train before the collision and tried to warn appellee, but he either did not hear or did not heed.

Following the collision, the train was stopped after running several hundred feet. Immediately upon the train being stopped, employees engaged upon it ran to appellee to ascertain who was injured, and the extent of the injury. The conductor asked him if he did not hear the whistle, why he did not get off the track, and whether he was drunk or crazy? To this appellee answered that he was neither; that he was absent-minded, and blamed himself as much as the railroad company; that if any signals were given he did not hear them. The engineer told appellee that he was sorry for him. The conductor sent a flagman to stop trains which might be following, backed up the train, put appellee upon it, took him back to Greencastle, where he lived, and left him in the ladies' room of the depot, in the care of the station agent. At the depot, and on the former trial, appellee, when questioned about the accident, stated that before and at the time of the collision he was absent-minded. The whistle was sounded, the bell rung, the brakes set, and the steam reversed about the time of the collision.

The above, as we stated, are the facts about which there is no conflict in the testimony. As to whether or not the signals were given, and efforts made to stop the train, before the collision, there is conflict in the testimony; seven witnesses testify that these preceded, and five that they followed the collision. One witness testified that after the injury appellee stated that he heard the signals, but did not know that they were for him.

For the purposes of this decision, it may be said that there was evidence tending to show that no signals of warning were given before appellee was struck by the train.

Upon this, and the undisputed facts above set out, is the appellant liable under either paragraph of the complaint?

It is very plain that appellee is not entitled to a recovery under the first paragraph, charging appellant with negligence. It is the general doctrine, and the settled law of this State, that where negligence is the issue, it must be a case of unmixed negligence; that, in such case, a party can not recover if it appear that by the want of ordinary care and prudence on his part he contributed to the injury, or if, by the exercise of ordinary care, he...