The Lake Shore and Michigan Southern Railway Company v. Mcintosh

• Decision Date: 01 November 1894
• Docket Number: 16,816
• Citation: 38 N.E. 476,140 Ind. 261
• Parties: The Lake Shore and Michigan Southern Railway Company v. McIntosh, Administrator
• Court: Indiana Supreme Court

38 N.E. 476

140 Ind. 261

The Lake Shore and Michigan Southern Railway Company v. McIntosh, Administrator

No. 16,816

Supreme Court of Indiana

November 1, 1894

Petition for Rehearing Overruled Feb. 27, 1895.

From the Steuben Circuit Court.

The judgment is affirmed.

J Morris, R. C. Bell, J. M. Barrett and S. L. Morris, for appellant.

F. S Roby, W. L. Penfield and J. F. Shuman, for appellee.

OPINION

Howard, J.

This action was brought by the appellee to recover damages for the death of his intestate at a railway crossing over a public highway. The accident was caused, as alleged, by the negligent construction of the crossing and by the negligent running of appellant's train.

The jury returned a general verdict for the appellee, and also answers to interrogatories.

Of the errors assigned but one is discussed in the briefs of counsel, the overruling of appellant's motion for a new trial.

Fault is first found with the instructions of the court. The second instruction requested by the appellee, and given by the court, was as follows:

"This case presents three questions of fact, amongst others, for the consideration of the jury. 1st. Was the death of Frances Anthony caused by injuries received by her on the 5th day of August, 1891, and produced by a locomotive and cars of the defendant coming in collision with the vehicle in which decedent was riding on said day, as alleged in the complaint? 2d. Were such injuries to said decedent produced by the negligence of the defendant, its servants or its employes? 3d. Did the negligence of said deceased woman contribute to such injuries and death?"

Counsel say this instruction leaves it to the jury to determine the question of law as to what is alleged in the complaint; that it was the duty of the court to construe the complaint, and to tell the jury what was alleged.

We think the court in this instruction distinctly informs the jury what the facts are, "as alleged in the complaint." The instruction is an exact copy, with change of names and dates, of instruction number 4, as given by the court in the Indianapolis, etc., R. R. Co. v. Stout, Admr., 53 Ind. 143, which was approved by this court.

Similar criticism is made by counsel of instruction number 5, as requested by appellee, and given by the court. Further objection is made to the following clause of this instruction: "You will inquire whether such injuries were produced by the negligence of the defendant, its agents, servants or employes."

Counsel gravely suggest that this requires the jury to say whether the injuries were caused "by the negligence of the defendant, or by its agents or servants or employes."

We do not think the words interpolated by counsel were suggested to the mind of the jury by the language of the court. The company could act only by its officers, agents, servants or employes. The instruction evidently, and in the plainest language, refers to such instrumentalities, and not to independent action of agents and others, for which the company would not be liable. Words in an instruction to a jury are to be taken in their plain and usual meaning. Verbal niceties and refined grammatical distinctions are not to be resorted to in such cases, provided the meaning of the language used is plain to a common intent.

The fourth instruction requested by the appellee, and given by the court, was as follows:

"If you find from the evidence that Frances Anthony was killed by the negligence of the defendant in constructing or maintaining the crossing of the highway described in the complaint, or by reason of obstructions wrongfully placed or maintained in such highway by defendant, or by the negligence of the defendant's servants in the management of said train, and that the deceased was not guilty of negligence on her part contributing to the injury, and that her death was caused by the injury, and if you find the other material allegations of the complaint proven, then your verdict should be for the plaintiff."

Much fault is found with this instruction. It is, however, almost identical with instruction No. 6 given in Indianapolis, etc., R. R. Co. v. Stout, Admr., supra, to which no objection was made.

In objecting to the instruction before us, it is first said that "The complaint does not allege that the plaintiff's intestate was killed by the defendant's negligence in the construction of said crossing. On the contrary, it shows that the crossing was constructed many years before she was killed, and that she was not killed by its construction."

We think counsel are mistaken in this. The complaint, in fact, sets out very fully and in detail various negligent acts of appellant in constructing and maintaining the crossing.

It is alleged, amongst other things, "That said highway was not crossed at right angles by defendant's said railroad track at said place, but that defendant's said track had wrongfully, negligently and unlawfully been constructed, and was, by defendant, at all times herein named, unlawfully, wrongfully and negligently maintained and kept, in and along said highway, for a distance of two hundred and fifty feet."

The particulars of such obstruction and negligent construction and maintenance of the crossing are set out at great length and in detail: That a ditch over the crossing, from four to six feet deep, and four feet wide, was maintained; that the earth from said ditch was banked up on the highway, thereby rendering the highway impassable, except for a space of about ten feet, which was covered with planks, the obstruction extending east and west of the railroad track a distance of twenty feet; that a board fence was maintained by appellant in said highway, one hundred and fifty feet long, and extending from the east line of the highway to the center thereof, appellant using for its own purposes all of the highway east of the fence, and thus wrongfully reducing the width of the highway from forty to twenty feet, and not leaving room for the public to pass in safety; that the appellant had suffered the road bed of the highway and the traveled part thereof to be washed away into said ditch, thus making the roadway dangerous and preventing vehicles from being turned away from the track and escaping from an approaching train after the same could be discovered; that appellant had permitted said washout to remain in said road bed for a long time prior to the accident, with full knowledge of its dangerous condition; that appellant had planted a post in said highway fifteen feet west of the track, thereby preventing vehicles approaching the track from being turned therefrom in time to avoid an approaching train after it could be observed in coming from the north, the point from which appellee traveled; the appellant had unlawfully and negligently failed to restore said highway to its former state after its said track was constructed across the same, or so as not to impair its usefulness unnecessarily or to injure its franchises, but wrongfully left and kept it in its narrow, obstructed condition, thus imperiling the lives of travelers upon the highway; that the highway north of the crossing descended towards the same rapidly, and because of the steep descent and the smoothness of the roadway up to the railroad track, it became a matter of great difficulty to stop a vehicle approaching from the north until at or upon the track; that appellant had therefore wrongfully diverted said highway so that no opportunity was afforded a vehicle from the north to escape or turn from said track on discovering a train approaching; that the railroad track from the north approached the crossing through a deep cut, the embankments from either side of which wholly obscured and concealed the engine and cars from the view of a person upon the highway north of the crossing; that the train was farther obscured by high grass, weeds and bushes suffered to grow along the west side of said track by appellant, also by the board fence aforesaid; that the ground west of the track was covered with timber and growing trees, which still further concealed the approach of a train; that from these causes not only was the view of a train obscured, but also its sound deadened and broken, so that the engine and cars could not be seen or heard until very near the crossing; that the crossing was further rendered dangerous by the steepness of the grade north thereof down which the approaching train came, so that it was difficult to avoid a high rate of speed over the same; that by reason of the things stated the crossing was a place of great danger to travelers lawfully approaching from the north and using the highway with all care; that the appellant had full notice of all these facts and of the danger of surprising travelers upon the crossing, which danger had been frequently called to appellant's attention; that by reason of appellant's unlawful and negligent acts and omissions, as herein set out, appellee's decedent was prevented from discovering said approaching train; that by reason of the unlawful, negligent and wrongful acts and omissions of the appellant, as herein set out, the said decedent was run over and upon by said train at said crossing, and without fault or negligence upon her part was bruised, crushed and killed thereby.

The complaint, therefore, does allege, and very fully, that appellee's intestate was killed by appellant's negligence in the construction and maintenance of the crossing. The fact that the crossing was negligently constructed many years before the injury, and so maintained by appellant, can not lesson, but, on the contrary, must increase the liability of appellant.

Even if the crossing had been constructed by former owners of the railroad, the present owners, still...