The Cincinnati, Indianapolis, St. Louis And Chicago Railway Co. v. Gaines

• Decision Date: 29 December 1885
• Docket Number: 11,761
• Citation: 4 N.E. 34,104 Ind. 526
• Parties: The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Gaines
• Court: Indiana Supreme Court

4 N.E. 34

104 Ind. 526

The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Gaines

No. 11,761

Supreme Court of Indiana

December 29, 1885

Reported at: 104 Ind. 526 at 536.

From the Tippecanoe Circuit Court.

The judgment of the court is reversed with costs.

J. R Coffroth and T. A. Stuart, for appellant.

B. W Langdon and T. F. Gaylord, for appellee.

OPINION

Mitchell, J.

This action was brought by John W. Gaines against the Cincinnati Indianapolis, St. Louis and Chicago Railway Company, and another railway company, whose line the appellant was operating, to recover for injuries alleged to have been sustained by the plaintiff in consequence of the careless and negligent running of a train by the appellant, and in failing to observe the statutory obligation imposed on those operating locomotive engines on railways, in respect of the approach to highway crossings.

The complaint is in two paragraphs. The first seeks a recovery for an injury upon the common law liability for negligence; while the second is grounded upon the right to recover for an injury occasioned by a failure to observe a statutory duty.

The wrong of which complaint is made in the first paragraph is, that while the plaintiff, with his team and wagon, was lawfully proceeding along a public highway or street, where it approaches and is crossed by the defendant's railway, the defendant carelessly and negligently caused a locomotive engine, with a train of cars attached, to approach and pass over the crossing, and that, by reason thereof, the plaintiff's team, without fault on his part, or that of his servant who was driving, took fright, became unmanageable, and ran away with the wagon, from which he was thrown with such violence that he sustained grievous injury to his person.

In the second paragraph it is charged that the plaintiff was proceeding along the highway in the manner stated, when the defendant caused a locomotive engine, with a train of cars attached, to approach the street crossing without sounding the whistle and ringing the bell, according to the statute in such cases made and provided, by reason whereof both plaintiff, and his servant who was driving, were unaware of the approach of the train; that the team took fright, became unmanageable, etc., and the plaintiff was, without fault, injured as stated.

It is contended that neither paragraph states a cause of action, and that the court committed error in overruling demurrers filed to each.

The only infirmity which is claimed, as pertaining to the first paragraph, is, that it fails to specify in what the defendant's carelessness and negligence consisted.

While the statements in the paragraph under consideration are, as was said in City of Evansville v. Worthington, 97 Ind. 282, too general to commend it as a model of good pleading, it is nevertheless settled that objection for that cause can only be taken by a motion to make more specific; it is not ground for demurrer. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261 (38 Am. R. 134); Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160.

Concerning the second paragraph it is sufficient to say that while we concede the proposition as contended for by counsel, that a statute which requires certain signals to be given as a train approaches a highway crossing, and which makes a railway company liable for all damages occasioned by a failure to give such signals, has no application to a case where the person injured was guilty of contributory negligence, we are nevertheless of the opinion that the averments of this paragraph are such as to rebut any presumption of contributory fault. Moreover, we think the contention of the appellee that the special findings affirmatively show that the conclusions of law and judgment of the court rest on the first paragraph of the complaint is well made. In that view of the case a reversal would not follow, even if it should have been held that the second paragraph was insufficient. Martin v. Cauble, 72 Ind. 67; Smith v. McKean, 99 Ind. 101.

Upon request the court found the facts specially, and stated its conclusions of law thereon. The manner in which the track crosses the highway, the cautionary signs provided, the speed at which trains usually run in crossing, and the situation and conformation of the grounds surrounding the crossing and approaches to it, are exhibited in detail in the findings.

It was found that the crossing was one that was much used by the passing teams and vehicles, was of extraordinary danger, that accidents had frequently happened there before within the defendant's knowledge, and that the usual statutory signals were not always sufficient warning to notify the public using the highway of the approach of trains. The railway track crossed the highway by an overhead bridge, fifteen feet above the highway, the passage way for teams underneath being a space about twelve feet in width.

Trains approaching from the west were not visible to persons on the highway coming from the north, except at a point about one hundred and eighty feet distant from the crossing, and not then until such trains reached a point not farther than forty feet from the bridge. The "whistling post" for trains approaching from the west was a fraction over thirteen hundred and thirty feet westerly from the crossing. On the 20th day of October, 1882, the plaintiff, with his two sons, was returning from the city of Lafayette to his home, seated in a farm wagon, which was drawn by a mule team driven by one of the sons. The team approached the crossing from the north-east upon a slow trot, the wagon making considerable noise, the plaintiff being at the time engaged in conversation with a neighbor who had been invited to a seat in the wagon. The wind was blowing moderately from the south-west, and the weather was clear and pleasant. It was about 4 o'clock p. m. It is found that under ordinary conditions the sound of the whistle on an engine could be heard from a point over a half mile west of the crossing, and the ringing of the bell, the roar and noise of the train coming over the track, could be heard a quarter of a mile distant. At a point from one hundred and eighty to one hundred and eighty-five feet from the crossing the team was stopped for the space of a few seconds for the purpose of looking and listening for the train, the plaintiff knowing that it was about time for the arrival of the regular passenger train, which was three or four minutes late. The occupants of the wagon hearing no signal or other indication of an approaching engine and train, the driver, by direction of the plaintiff, whipped the team into a brisk trot and passed to the railroad crossing at the rate of about six miles an hour. This is found by the court to have been a proper rate of speed under the circumstances. While the plaintiff was thus occupied, an engine with a passenger train attached was coming from the west, over the defendant's line, at the rate of about eighteen miles an hour. When the engine arrived at the whistling post the engineer gave one "long blast" from the whistle, lasting five or six seconds, the fireman at the same time ringing the bell, which was rung continuously until the crossing was passed. The team and the engine reached the crossing about the same time, and while the wagon was under the bridge, and the engine passing above, the whistle on the engine was sounded, the persons in charge of the engine being unable to see teams when so near as plaintiff was, and having no knowledge of the presence of the passing team below. It is found that the mules were frightened by the sound of the whistle, the noise and smoke of the train, and that this was the sole cause of their fright. They became unmanageable, ran away with the wagon, which was...