The Louisville, New Albany And Chicago Railway Company v. Stanger

• Decision Date: 24 June 1893
• Docket Number: 587
• Citation: 34 N.E. 688,7 Ind.App. 179
• Parties: THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. STANGER
• Court: Indiana Appellate Court

34 N.E. 688

7 Ind.App. 179

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. STANGER

No. 587

Court of Appeals of Indiana

June 24, 1893

7 Ind.App. 179. At 191.

Original Opinion of October 27, 1892, Reported at: 7 Ind.App. 179.

Petition overruled.

LOTZ J. GAVIN, C. J., concurs in the result. ROSS, J. REINHARD, J concurs with the conclusion of LOTZ, J. DAVIS, J., concurs.

OPINION

ON PETITION FOR A REHEARING.

LOTZ J.

The appellant has presented a petition for a rehearing, in which the former decision of this court is assailed with great vigor.

There are some acts charged in the complaint, which do not, in our judgment, constitute negligence, and there are some facts found by the special verdict that are not alleged in the complaint, and which do not constitute negligence. Eliminating from the special verdict all such facts and all conclusions of both law and fact, as we may do (Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187), the question arises whether or not there are facts alleged and found remaining sufficient to support the judgment rendered by the lower court.

In their brief, appellant's counsel admit that there are two acts of alleged negligence which are averred in the complaint and found by the jury:

"1st. That appellant, knowing that appellee's team was running away, and that appellee was in a place of danger, blew the engine whistle three times; and

"2d. Made no effort to stop or check the speed of said train, but willfully and carelessly increased the speed thereof."

It is earnestly insisted that the evidence does not sustain either of these findings. We have examined the evidence, and find it conflicting on both of these points.

It is the settled rule that this court will not disturb the judgment under such circumstances.

It is further contended that as the law made it the duty of the engineer to give the signal by sounding the whistle for the highway crossing, negligence can not be predicated upon an act which the law requires to be done. The former opinion of this court is severely criticised.

Counsel for appellant, with remarkable force and clearness, say: "Can it be said to be the law that when an engineer sounds the whistle of his engine in strict obedience to the statute, he may be guilty of negligence? Must he, while holding in his hands the lives and property entrusted to his care, dashing along at the rate of fifty or sixty miles an hour, with all his cares, in the twinkling of an eye transform himself into a witness, jury, and court, survey the surroundings and determine with absolute accuracy, above the possibilities of criticisms, whether he shall obey the law, and be guilty of gross negligence thereby, or disobey the law and see before him a threatened fine for himself and damage suit for his company, and maybe death to his passengers?

"The statute requires that the whistle shall be sounded not more than one hundred nor less than eighty rods from the road crossing. The signal must be given within this space. This distance of twenty rods is often traveled in four seconds of time, and yet the engineer must look at the team, determine how fast it is running, how badly scared it is, how strong and capable the driver, what probable effect the sounding of the whistle will have on the scared team, and determine with accuracy whether the "exception applies," and he is justified in running on quietly and probably creeping upon some driver about to cross, and who has, with all due diligence, listened for the warning guaranteed to him by law for his protection, and dash him and his carriage load of passengers into eternity.

"Would any jury and court, with days of deliberation and the facts laid before them by witnesses from every standpoint of observation, be able to determine just how fast the team may be running, just what conditions must exist to justify the engineer in disobeying the statute?

"In this case the horses were almost under control, the speed checked, and if it had not been for this crossing whistle they would not have become unmanageable. This was a much traveled road, and can it even now be said that the sounding of the whistle on...