The Cincinnati, Indianapolis, St. Louis And Chicago Railway Company v. Grames

• Court: Indiana Supreme Court
• Writing for the Court: Coffey, J.
• Citation: The Cincinnati, Indianapolis, St. Louis And Chicago Railway Company v. Grames, 34 N.E. 714, 136 Ind. 39 (Ind. 1893)
• Decision Date: 21 September 1893
• Docket Number: 15,137
• Parties: The Cincinnati, Indianapolis, St. Louis and Chicago Railway Company v. Grames

34 N.E. 714

136 Ind. 39

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

No. 15,137

Supreme Court of Indiana

September 21, 1893

Petition for Rehearing Overruled Dec. 14, 1893.

From the Clinton Circuit Court.

Judgment reversed, with directions to the circuit court to grant a new trial.

J. T Dye, B. K. Elliott and W. F. Elliott, for appellant.

A. C Harris, P. H. Dutch and J. G. Adams, for appellee.

OPINION

Coffey, J.

This was an action by the appellee, in the court below, to recover damages on account of a personal injury.

The complaint alleges, among other things, that on the 31st day of August, 1887, the appellant, as an organized corporation, was the owner, and was in the possession of a railway which it was operating through Boone county, in this State; that on that date it, by its servants, was running a freight train on its railway through the town of Thorntown, in that county; that the appellee, in company with his brother, was traveling over and upon a public highway in said town, known as Main street; that the appellant's railway track intersects and crosses said highway in the town, at a point about seventy-six feet east of the intersection of Main street with Pearl street; that appellee approached the railway crossing in a two-horse wagon, from the west; that on either side of Main street, west of the crossing, for the distance of one-half mile or more, there were high buildings which, after appellee passed out of Pearl street in going east towards said crossing, greatly obstructed the view of appellant's railway track; that the view of appellant's railway track and passing trains was also obstructed by a box car which appellant had unlawfully and negligently left standing upon its side track which crossed Main street parallel with the main track; that while appellant, on the day named, was in the act of passing over said crossing, in his wagon, an engine and some cars attached thereto, conducted by the appellant's servants, approached said crossing from the southeast, running at a negligent, rapid, and reckless rate of speed, said servants negligently omitting to give any signal or notice whatever of the approach of said engine and cars; that while engaged in said negligent conduct, the engine so conducted by them collided with the wagon upon which appellee was riding, casting and throwing him against the iron rails and the ties upon the track of appellant's railway; that, by reason of the injuries thus received, he is permanently disabled, and will, in the future, be unable to perform any kind of manual labor or pursue any kind of business; that such injuries were wholly caused by the negligent conduct of the appellant as above set forth, and that the appellee did not contribute in any way whatever to produce the same, and that he was without fault on his part.

Issue being joined on this complaint, the cause was tried by a jury, resulting in a special verdict, upon which the court, over a motion for a new trial, rendered judgment for the appellee.

In this court, the appellant assigns as error:

"First. That the circuit court erred in rendering judgment for the appellee on the special verdict of the jury.

"Second. That the circuit court erred in overruling the appellant's motion for a new trial."

The special verdict fully establishes the negligence of the appellant in the matters alleged in the complaint. Indeed, it is not contended by the learned counsel for the appellant that the negligence of its employes, on the occasion of the injury of which complaint is made, was not of such a character as to render it liable, provided the appellee was not guilty of negligence which contributed to his injury. It is contended, however, that it does not appear from the special verdict that the appellee was not guilty of contributory negligence.

Before entering upon an examination of the verdict, under immediate consideration, it may not be improper to state some of the legal rules by which we are to be governed in determining its sufficiency to authorize a judgment for the appellee.

While in some jurisdictions it is otherwise, it is firmly settled, in this State, that contributory negligence is not a matter of defense, and that the plaintiff, by pleading and proof, must affirmatively show that he did not, by his own negligence, contribute to the injury for which he sues, before he can recover. Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31, 2 N.E. 138; Lyons v. Terre Haute, etc., R. R. Co., 101 Ind. 419; Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486.

It seems to be settled, also, in this State, that where one approaches a point upon the highway where a railroad track is crossed upon the same level, it is his plain duty to proceed with caution, and if he attempts to cross the track, either on foot or in a vehicle of any description, he must exercise, in so doing, what the law regards as ordinary care under the circumstances. He must assume that there is danger and act with ordinary prudence and circumspection upon that presumption.

It has also been repeatedly held by this court that the law proceeds "beyond the featureless generality that one must do his duty in this respect, or must exercise ordinary care under the circumstances. The law defines precisely what the term 'ordinary care under the circumstances,' shall mean in these cases. In the progress of the law, the question of care at railway crossings, as affecting the traveler, is no longer, as a general rule, a question for the jury. The quantum of care in a large class of cases is exactly prescribed as matter of law. In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track. * * * If a traveler, by looking, could have seen an approaching train in time to escape it, it will be presumed, in case he is injured by a collision, either that he did not look, or if he did that he did not heed what he saw."

The presence of a railroad track, upon which a train may at any time pass, is notice of danger, and it is the duty of a person about to cross such road, on a public highway, to exercise caution in doing so, and to look both ways for approaching trains, if the surroundings are such as to admit of such a precaution. It is also held that cases may arise in which the question as to whether a person injured at a railroad crossing did or did not exercise ordinary care under the circumstances, becomes one of fact to be determined by the jury under proper instructions by the court. Beach on Contributory Negligence, p. 191, section 63; Ohio, etc., R. W. Co. v. Hill, Admx., 117 Ind. 56, 18 N.E. 461; St. Louis, etc., R. W. Co. v. Mathias, 50 Ind. 65; Pittsburgh, etc., R. W. Co. v. Martin, 82 Ind. 476; Terre Haute, etc., R. R. Co. v. Clark, Admr., 73 Ind. 168; Pennsylvania, etc., R. R. Co. v. Righter, 42 N.J.L. 180; Conner v. Citizens' Street R. W. Co., 105 Ind. 62, 4 N.E. 441; Bellefontaine R. W. Co. v. Hunter, 33 Ind. 335; Indiana, etc., R. W. Co. v. Greene, 106 Ind. 279, 6 N.E. 603; Mann v. Belt R. R. and Stock Yard Co., 128 Ind. 138, 26 N.E. 819; Hathaway v. Toledo, etc., R. W. Co., 46 Ind. 25; Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31, 2 N.E. 138.

With these established principles before us, we proceed to an examination of so much of the special verdict in this case as tends to throw light upon the question as to whether the injury for which the appellee sues is, in any degree, to be attributed to his negligence, and as to whether it appears therefrom that he was not guilty of contributory negligence.

It appears from the special verdict of the jury that on the 31st day of August, 1887, the appellee, who at that time resided on a farm eight miles southeast of Thorntown, in Boone county, brought a load of wheat into town on a two-horse wagon, arriving about ten o'clock in the morning. He came into town from the east, on Main street, and in doing so crossed the appellant's railroad track which, at this point, runs north and south, and saw the situation and surroundings at the crossing, and the position of a box car which stood on the side track at the crossing.

After unloading his wheat, he hitched his team on Peal street, where it remained for a short time, after which he unhitched it, returned to the wagon with his brother, and started in a northeasterly direction to Main street and to a point on Main street sixty feet west of the point where Main street crosses the main track of the appellant's road and in full view of the crossing. At this point appellant stopped his team for the period of one minute, and he and his brother listened and looked for approaching trains. He started towards the crossing, directing his brother to look and listen for approaching trains from the north, while he listened for trains approaching from the south.

At the crossing there is a space of five and one-half feet between the main track and the side track, the side track being on the west of the main track. Main street is one hundred feet in width. On the south side of this street, and abutting thereon, is a two-story brick building extending from Pearl street east seventy-six feet, to a point within three feet and four inches of the west rail of the side track above mentioned. On the north side of the street, and abutting thereon, is a three-story frame building extending east from Peal street to the appellant's right of way, on which its railroad tracks above mentioned are located. East of the railroad tracks, and abutting on the north side of Main street, is a two-story frame house, known as Adair's hotel, the west end of which building is within twenty feet of the east rail of appellant's railroad track.

There is, also, on the...