Terre Haute & I.R. Co. v. Brunker

• Citation: 26 N.E. 178,128 Ind. 542
• Parties: Terre Haute & I. R. Co. v. Brunker.
• Decision Date: 10 December 1890
• Court: Supreme Court of Indiana

128 Ind. 542

26 N.E. 178

Terre Haute & I. R. Co.

v.Brunker.¹

Supreme Court of Indiana.

Dec. 10, 1890.

Appeal from circuit court, Vigo county; H. C. Nevitt, Judge.

John G. Williams and Harrison, Miller & Elam, for appellant. McNutt & McNutt, for appellee.

OLDS, J.

This was an action by the appellee against the appellant for damages for injuries received to his person and property, alleged to have been caused by the negligence of the appellant. The plaintiff, on the 8th day of May, 1885, about 6 o'clock in the evening was driving a two-horse team and wagon, traveling east on the National road in the county of Putnam, about one mile and a half west of Reelsville. At that point, the National road crosses the appellant's railroad. Appellee's horses became frightened when the train was approaching and passing the crossing, and appellee was injured. Issues were joined on the complaint. There was a trial had and a special verdict returned by the jury and judgment on the verdict for the appellee. The errors assigned are: First. The court erred in overruling appellant's motion for judgment in its favor on the verdict. Second. The court erred in sustaining appellee's motion for and in rendering judgment in favor of appellee on the verdict. Third. The court erred in overruling appellant's motion for new trial. The jury, by their special verdict, found the following facts, which are material to be considered in passing upon the questions presented: That on the 8th day of May, 1885, the defendant was operating the railroad, and the plaintiff, at about 6 o'clock p. m. on said day, was traveling eastward along the National road, a public highway; that he was driving two horses attached to a two-horse vehicle loaded with medicine; that he was upon a seat in the front part of said vehicle; that said highway, at a point about 1 1/2 miles west of Reelsville, in Putnam county, crosses the Terre Haute & Indianapolis Railroad; that plaintiff approached said crossing driving at ordinary speed in a walk; that, when he came within about 100 yards of said crossing, he stopped his team, and both looked and listened for approaching trains, but saw none, and no train was then at a point visible from said point of observation, nor did plaintiff hear any sound or signal of an approaching train; that thereupon he drove his team, walking, towards the crossing; that the grade of said railroad at said crossing is and was about 10 feet above the common level of the ground on which the road lay, until within a little over 100 feet of the crossing, where it began gradually to rise upon a grade which at the crossing is of the same height as the railroad; that, when plaintiff had reached and entered upon the grade, and not till then, he saw a passenger train approaching from the east at a rapid rate of speed, to-wit, at the rate of from 40 to 50 miles per hour; that immediately upon seeing the train, which was not more than from 400 to 600 feet from the crossing, plaintiff leaped to the ground, and ran to his horses' heads to hold them; that, at about the time he discovered the approaching train, and as he was going to his horses' heads, and when the train was about 350 or 400 feet from said crossing, the whistle to the engine attached to the approaching train began to sound, and continued to so sound, until at or about the crossing; that the horses attached to the plaintiff's wagon became so greatly frightened by the train that, in attempting to break away from plaintiff, they turned southward, dashed down a precipitous bank caused by the construction of said grade, and, at a point about three feet in height, knocked the plaintiff down, trampling upon him, and drawing the wagon which, with its load, weighed about 1,300 pounds, upon and across the arms and body of plaintiff, severely injuring him, without any fault upon his part, and while he was in the exercise of reasonable prudence and diligence to prevent injury to his person and property; that as the train approached said crossing, and when not more than 100 nor less than 80 rods from said crossing, the whistle of the engine was not sounded three times distinctly, nor was it between, at, or within said points sounded at all, nor was the bell attached to said engine, if any was attached, rung as the train approached said crossing; that the defendant's agents and servants in charge of said train negligently failed to either sound the whistle or ring the bell of said engine so attached to said train; that said negligent failure to sound said whistle and ring said bell was the cause of the injury to plaintiff without his fault; that plaintiff was at the time of the injury about 53 years of age; that plaintiff did not hear the sound of the whistle nor the noise of the approaching train, though looking and listening for the same, until it had reached the point from four to five hundred feet from the crossing which he was approaching; that plaintiff had no knowledge of the times of the passage of the trains at that time at that point; that, after leaving said point where the plaintiff stopped to look and listen, there is no point on said railroad at which a train approaching from the east is visible to one approaching the crossing along the highway until such train passes a cluster or clump of timber near defendant's railroad about 600 feet east of said crossing; that, prior to the injuries received as aforesaid, the plaintiff was a man of good health and able to pursue his business, which was that of traveling with wagon and team, and selling and delivering medicines of which he was the proprietor, and at which pursuit he was able to earn a livelihood for himself and family; that, by reason of his being knocked down, and trampled upon, and run over by said wagon, his life was imperiled, and his body and his limbs were severely and painfully injured and bruised, and he was severely injured in his lungs, which injury is permanent, and has caused and is liable to cause plaintiff great suffering at times, and, on taking slight cold or making slight exertion, prostrating him, and causing very great pain and suffering, and peril to his life; that, by reason of said injuries, he has been compelled to abandon and give up his business of traveling, to sell and deliver his medicines, whereby he has suffered, and must suffer, serious pecuniary loss; that defendant is a railroad corporation, owning and operating a railroad extending from Indianapolis, in the state of Indiana, through Reelsville, in Putnam county, Ind., to the city of Terre Haute, in said state, and said railroad between Reelsville and a point two miles west thereof crosses a highway known as the “National Road” four times, and also crosses within said distance another highway running from north to south on a section line, the fourth crossing of the National road being about 61 rods east of said section line highway, and about 160 rods west of the third crossing of said National road; that plaintiff was approaching the fourth crossing, and when about 300 feet west of said crossing he stopped, and, while sitting in his wagon, looked and listened, his eyes being six feet nine inches above the ground, and he could have seen a train approaching from the east at a point on defendant's railroad 1,490 feet east of the fourth crossing of said National road. No train was in sight, and he drove on to a point about 100 feet west of said fourth crossing, and at this last-named point a west-bound train on defendant's railroad came in view, running from 35 to 50 miles per hour. It is then again stated in the verdict that the plaintiff got down and went to his horses' heads; that the whistle was sounded at the point as before stated, and the horses became frightened and became unmanageable, and the wagon ran over him; and that the whistle was sounded not more than 100 nor less than 80 rods of the fourth crossing, but was sounded within that distance, before reaching the third crossing. Then follows another statement as to the plaintiff's injury, his health and business, both before and after his injury, giving it more in detail than in the former part of the verdict; and that the plaintiff's time before the injury was worth $10 per day, and concluding with the finding that if, upon the facts, the law is with the plaintiff, the jury find for the plaintiff, and assess his damages at $4,400, and if the law be with the defendant, the jury find for the defendant.

It is insisted that the verdict is insufficient...