The Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Penketh
| Decision Date | 27 June 1901 |
| Docket Number | 3,811 |
| Citation | 60 N.E. 1095,27 Ind.App. 210 |
| Parties | THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. PENKETH |
| Court | Indiana Appellate Court |
From Madison Superior Court; H. C. Ryan, Judge.
Action by Lottie Penketh against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company for injury at a railroad and street crossing. From a judgment for plaintiff, defendant appeals.
Affirmed.
J. W Lovett, F. E. Holloway, W. H. Dye and C. E. Cowgill, for appellant.
E. B Goodykoonts, G. M. Ballard and B. H. Campbell, for appellee.
Action for damages for alleged injuries at a street crossing on appellant's road in the city of Anderson. Complaint in one paragraph to which a demurrer was overruled. Trial upon the general issue, general verdict for appellee, and answers to interrogatories. Appellant's motion for judgment on the answers and its motion for a new trial were overruled. These rulings are the only errors assigned which are discussed.
Appellant's railroad runs east and west through the city of Anderson, and crosses at right angles Meridian street, a brick paved street twenty-seven feet wide and a principal thoroughfare. At the crossing appellant has five tracks crossing the street, and south of these a sixth track, known as the Bronnenberg track, which abuts the east side of the street. The south track of those crossing the street is known as house track number one. Along the center of the street is a street railroad. These tracks and the street are substantially on the same level.
The jury answered that between 6:30 and 7 p. m. on June 27, 1898, appellee, twenty years old, average bodily activity, good sight and hearing, sufficiently skilled in riding a bicycle readily to control its movements, was riding a bicycle on Meridian street and attempted to cross the tracks. When she came to a point fifty feet from the track on which the car that struck her stood she was traveling six miles an hour, and four miles per hour as she passed from a point fifty feet from the track to a point ten feet from the track, and the same speed from a point ten feet from the track to the place where she was struck by the car. When the car first began to move toward her she was two feet from the car and just north of the south rail. The car was thirty feet long and eight and one-half feet wide, and when it first began to move toward her the west end of the car was two feet west of the east line of the street. All of these tracks were in use by appellant at all times of the day and night in moving trains, cars, and engines. The car that struck appellee was moving four miles per hour. As appellee approached the crossing she was going north and was on the east side of the street car tracks. As appellee approached the crossing and was between five and fifty feet of the point where the accident occurred appellant was not operating an engine in the moving of cars on house track number one. As she approached the point where the accident occurred a freight car stood on house track number one across the east sidewalk and projected upon the pavement of the street. As she was attempting to cross this track appellant's servants detached a car from its locomotive, which was pushing it upon that track and permitted the loose car to run against the standing car causing it to move along the track and collide with the bicycle, causing the injury. A flat car five feet high stood on the Bronnenberg track, the west end of which car was sixteen feet east of the east line of the street. Appellee could not have looked over this car and have seen an approaching box freight car on track number one. As appellee approached the crossing and was fifteen feet south of the south rail had she looked east along the track she could not have seen a car such as the one that set in motion the car that struck her; nor could she have seen a car when twelve feet south of the track, nor ten feet, nor eight feet, nor seven feet, nor five feet, nor four feet. When she was five feet south of the track she could not have seen an approaching car before it struck the car that stood on the track; nor could she have seen it when it was fifteen, twelve, ten, eight, seven, six, five or four feet east of the standing car. Had she listened she could not have heard the moving car when seventy-five feet east of the standing car, because it made no noise; and for the same reason could not have heard it when the moving car was fifty, twenty-five, or fifteen feet east of the standing car. She had seen the engine going east, which indicated to her that the car would not be approached from the east by an engine or car. Appellee was and for ten years had been familiar with the location of the tracks and of their uses by appellant. The car was pushed into the street by "kicking in a car". The bell of the engine as it pushed the cars against the standing car was not ringing. "Cars on track one at crossing and Bronnenberg track totally obstructed" view between Bronnenberg track and house track number one looking east from Meridian street as far as Main street. The brake on the car that struck appellee was set. Had she attempted to cross the track five feet or more from the car she would not have escaped the collision. There was a space of at least twenty-five feet west of the west end of the car through which she might have crossed. She attempted to cross by riding at a distance of not to exceed three feet from the car and when her husband was riding a bicycle so near on her left that she could not turn away from the car in case it should start toward her.
It is well settled that the crossing of a highway by a railroad track is a place of known danger and that a traveler on the highway must approach it as such under the apprehension that a train is liable to cross at any moment, and that the traveler's negligence is shown if an accident happens which might have been avoided by the use of his faculties. The rule is also well established that all reasonable presumptions must be indulged against the special answers and in support of the general verdict, and if the general verdict, thus supported, is not in irreconcilable conflict with the special answers, it must stand.
The answers show appellee was familiar with the crossing and with the uses to which the tracks were put by appellant. The fact that the car was projecting over the sidewalk did not necessarily make it incumbent upon appellee to attempt to cross the track further towards the west. The evidence shows she was riding on the right side of the street and about half way between the street car track and the curb that she was in a place where she had a right to be. The fact that she might have gone twenty-five feet to the west and probably avoided the accident, and did not do so, her failure to do so was not necessarily a negligent act. Whether or not she was negligent in going as close to the car as she did go depended upon the circumstances surrounding her at the time. She should be held to the exercise of ordinary care and prudence under all the circumstances, and if in good faith and with ordinary care and prudence she acted upon appearances, and was deceived thereby, negligence will not be imputed to her. Chicago, etc., R. Co. v. Hedges, 105 Ind. 398, 7 N.E. 801; Howe v....
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Cleveland, C., C. & St. L. Ry. Co. v. Penketh
...... Action by Lottie Penketh against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in ......