The Baltimore and Ohio Southwestern Railway Company v. Conoyer

• Decision Date: 23 November 1897
• Docket Number: 18,182
• Citation: 48 N.E. 352,149 Ind. 524
• Parties: The Baltimore and Ohio Southwestern Railway Company v. Conoyer
• Court: Indiana Supreme Court

48 N.E. 352

149 Ind. 524

The Baltimore and Ohio Southwestern Railway Company v. Conoyer

No. 18,182

Supreme Court of Indiana

November 23, 1897

Rehearing Denied Feb. 18, 1898, Reported at: 149 Ind. 524 at 532.

From the Pike Circuit Court.

Affirmed.

W. H DeWolf, Gardiner & Gardiner and E. W. Strong, for appellant.

J. S Pritchett, Cullop & Kessinger, Posey & Chappell and Townsend & Wilhelm, for appellee.

OPINION

Jordan, J.

The appellee recovered damages against appellant for injuries sustained by reason of one of its passenger trains colliding with him as he was passing over the company's track, in a wagon, at a point where it intersects a public highway near the city of Vincennes. On change of venue, the case was tried in the Pike Circuit Court, and, over appellant's motion for a new trial, a judgment was rendered in favor of appellee for the damages awarded by the jury.

The cause of action in controversy is based upon the alleged negligence of the appellant in omitting to give the statutory signals when the train which ran over the appellee was approaching the public crossing in controversy. It is insisted that the amended complaint does not sufficiently state a cause of action, inasmuch as it fails to show that the negligence of the appellant was the proximate cause of the injury of which appellee complains, and that it does not establish the fact that there was, at the time of the accident in question, an absence of contributory negligence on the part of the latter. That an action ordinarily accrues in favor of a person, not guilty of contributory negligence, who is injured by the negligence of a railroad company in failing to give signals, as required by the statutes of this State, when its train is approaching the crossing of a public highway, is settled by numerous decisions of this court. And, as a general proposition, the failure of a railroad company to discharge its duty in regard to giving the signals at public crossings, as enjoined upon it by the statute, is negligence per se. Still this alone is not sufficient to entitle the injured party to a recovery, but he must go further, and show that such negligence was the proximate cause, without which the injury of which he complains would not have resulted, and that he himself was not guilty of negligence contributing to such injury. See Baltimore, etc., R. W. Co. v. Young, 146 Ind. 374, 45 N.E. 479, and authorities cited; Chicago, etc., R. R. Co. v. Thomas, 147 Ind. 35, 46 N.E. 73.

An examination of the pleading in question satisfies us that the facts therein averred affirmatively establish that the accident, occurring at the crossing, and to which the plaintiff attributed his injury, was due to the negligence of the defendant, in omitting to give the required signals; and that it is further shown by both the specific facts averred therein, as well as the general allegations, that the plaintiff was free from fault, and did not contribute to his alleged injury; and, tested by the rule to which we have referred, the complaint is sufficient.

At the close of the appellee's evidence in chief, appellant moved the court to direct the jury to return a verdict in its favor. The motion was overruled, and the appellant excepted. The trial then proceeded, and appellant introduced its evidence, and the evidence was finally closed by both parties, without appellant renewing or offering to renew the motion in question. The action of the court in denying this motion is urged as error, and we are asked to review the plaintiff's evidence in chief, separate and apart from that given by the appellant in chief and the appellee in rebuttal, and thereby determine the alleged error. This, under the circumstances, we are not authorized to do. If a defendant in an action, upon the close of the plaintiff's evidence in chief, moves the court to direct a verdict on such evidence in his favor, he must stand by his motion; for, if he subsequently introduces his own evidence, he will be regarded as having waived or receded from his motion, and therefore no question can be considered under such motion on appeal. The appellant might have renewed its motion, had it desired, at the close of all of the evidence in the case, and requested the court, in consideration of the entire evidence, to direct a verdict in its favor, and, in that event the judgment of the court would have rested on the evidence as a whole, and not upon a part thereof. This, we think, is the correct rule, and is recognized as such by the authorities. Elliott App. Proc., section 687, and authorities there cited; Citizens' Street R. R. Co. v. Stoddard, 10 Ind.App. 278, 37 N.E. 723.

It is next insisted that the court erred in giving certain instructions to the jury. Instructions numbered one given at the appellee's request, is criticized for being too general, and misleading. The argument of the learned counsel for appellant, however, does not convince us that the instruction in controversy is open to these objections. It is, in its character, but an exposition in general in regard to the duties of the servants of a railroad company, in charge of its trains, when approaching a public crossing, and, likewise, of a person upon a highway in approaching and in going upon and over such crossing. It substantially and correctly stated the law in this respect in a general way; and, if not sufficiently specific, the proper thing for appellant to have done was to have tendered one of that character to the court with the request that it be given. When the instruction is considered in connection with the entire charge, as it must be, it cannot be said to have tended to mislead the jury. Counsel, continuing their criticism of the instruction, say: "We are unable to find any cases holding that a person about to cross a railroad track has a right to presume that a train is...