The Baltimore And Ohio And Chicago Railroad Co. v. Walborn

• Decision Date: 14 January 1891
• Docket Number: 14,513
• Parties: The Baltimore and Ohio and Chicago Railroad Company v. Walborn, Administrator
• Court: Indiana Supreme Court

26 N.E. 207

127 Ind. 142

The Baltimore and Ohio and Chicago Railroad Company v. Walborn, Administrator

No. 14,513

Supreme Court of Indiana

January 14, 1891

Petition for a Rehearing Overruled March 19, 1891.

From the Allen Circuit Court.

Judgment affirmed.

J. H Collins and B. B. Kingsbury, for appellant.

W. L Penfield, for appellee.

OPINION

Coffey, J.

This was an action by the appellee, as administrator of the estate of Andrew Bolander, deceased, against the appellant, to recover damages for an injury resulting in the death of the said Bolander.

The second paragraph of the complaint, upon which the cause was tried, alleges, substantially, that, on August 9th, 1887, the appellant was, and still is, running and operating a railroad running through the town of Garrett, in this State; that during all of said time there extended through the central part of said town and public street, running north and south, which street was intersected by the right of way of the defendant and its tracks, and which right of way and tracks ran east and west through the central portion of said town, and all of which were within the corporate limits of said town; that on said day the decedent was driving north along said street with a span of horses and wagon thereto attached, and while he was thus driving along said street and onto and upon said crossing, and was attempting to drive and pass over said crossing, he was, without any fault on his part, run against and over by an engine and car of the defendant thereto attached, solely through and by the negligence of the defendant; that the defendant, by its servants, who were then operating said engine and car as aforesaid, negligently failed and omitted to give any warning or signal of the approach of said engine and car towards the crossing, by the sounding of a whistle or the ringing of a bell, or by any watchman or flagman, or in any other manner, and had negligently failed to provide any such watchman or flagman or gate at such crossing, although it was frequently passed over by the travelling public; that although said decedent, as he approached and entered upon said crossing, exercised all due and proper care on his part, and looked and listened to see or hear any train that might be approaching, yet being unable to see or hear any train or engine in motion on account of the obstruction of his view by cars and trains of cars then standing on said track, and there being no signal or warning of any kind of the movement of said switch engine and car, he was, without any negligence on his part, and solely by and through the said negligence of the defendant, run upon and over by said car and switch engine, and was by said collision so bruised, mangled, crushed and mortally wounded that from said wounds and injuries he, within a few days thereafter, died, to wit, on the ----- day of August, 1887; that said collision, wounding and death of the decedent were caused solely by the aforesaid negligence of the defendant, and without any fault on his part; that said decedent was, at the date of said collision, forty-three years old, was of sound constitution, healthy, industrious and frugal, and by his toil and exertions supported his family in comfort; that he left surviving him his widow, Elizabeth Bolander, and four children, to wit, Frank, Emma, Lettie and Jeremiah, aged respectively, 22, 18, 16 and 15 years; that said widow and children depended solely upon said decedent for their support, nurture, education and maintenance, and this action is prosecuted solely for their benefit; that at the time of said collision said decedent was engaged in business in which he was capable of earning an income of $ 1,500 per year; that by reason of the premises said widow and children and the plaintiff had been damaged in the sum of $ 10,000, for which the plaintiff demands judgment.

To this complaint the appellant filed an answer consisting of the general denial.

Upon a trial the jury returned a general verdict for the appellee, upon which the court, over a motion for a new trial, rendered judgment.

Under the repeated rulings of this court to the effect that we will not undertake to weigh the evidence in a cause, every material fact necessary to make out the appellee's case which the evidence tends to establish must be taken as true, as it was so found by the jury. Under this rule the material facts in the case are, substantially, as follows:

The injury for which this suit was prosecuted occurred in the town of Garrett on the 1st day of August, 1887. At the point where it occurred the appellant has six railroad tracks running east and west parallel with each other. The most southern rail and the most northern rail of said tracks are about sixty-five feet apart. Randolph street, in the town of Garrett, which is eighty feet wide, runs north and south and crosses the six tracks of the appellant at the point where the injury occurred. Quincy street runs east and west at a distance of about three hundred and twenty feet south of the point where Randolph street crosses the appellant's tracks. Both sides of Randolph street, south of Quincy, are occupied with business buildings for a distance of two or three blocks south of Quincy street; and by reason of that fact the view of a person travelling north on Randolph is shut off both from the east and west. Near the west side of Randolph street a large round-house and machine shops and other large buildings are situated. A board fence, six or seven feet high, completely enclosed the grounds belonging to the appellant north of Quincy street, west of Randolph street and of defendant's tracks, except a small space near the west end of the fence. The fence approaches within fifteen feet of the most southerly of the appellant's tracks. At the time of the injury the third and fourth tracks from the south were occupied with long trains of freight cars, which were standing still, and were cut into two sections at the crossing, leaving a passage way between them of from eighteen to twenty-five feet, the two sections west of the crossing occupying the tracks upon which they stood to the round-house and machine shops, which stood on the south side of the tracks. The yard-office and other buildings stand near the northeast corner of the land enclosed by the fence above referred to, so that it was impossible for persons travelling on Randolph street north towards the crossing to see trains of cars moving along the northerly track eastward to the point where Randolph street crosses the tracks. On the south side of the tracks, and east of Randolph street, stands the passenger depot and adjacent building, one hundred and fifty feet long, the west end of which approaches within about seventy feet of Randolph street, the building being from ten to fourteen feet south of the most southerly track. On the north side of the tracks stands the freight-house within eight to fifteen feet of the most northerly track and within twenty-eight feet of the east side of Randolph street.

On the morning of the 1st day of August, 1887, about 8 o'clock, the deceased approached the crossing from the south on Randolph street, in a milk wagon, with the curtains rolled up on either side so as not to obstruct his view or hearing. He was a man of good hearing and average sight. While he was driving north on Randolph street towards the crossing, at a point one hundred feet south, he drove his team at a walk, the team continuing to walk until it entered upon the first or second track from the south. The team was kind, gentle and well-broken, and was under his control. Just before entering upon the tracks at the crossing, and as he entered thereon, he looked both east and west along the tracks to see and listened to ascertain whether he could hear any trains approaching, and did not either see or hear any train or engine in motion. There was no sound of bell or whistle, or any other noise indicating the approach of an engine or train. A dray was driven across the tracks from one to three minutes ahead of him. After he drove upon the crossing he continued to look east and west for approaching trains or engines. About the time his horses reached the sixth track in passing from the south, an engine and flat-car appeared in close...