The Pittsburgh, Cincinnati, Chicago And St. Louis Railway Company v. Dove
| Decision Date | 24 February 1916 |
| Docket Number | 22,833 |
| Citation | 111 N.E. 609,184 Ind. 447 |
| Parties | The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Dove |
| Court | Indiana Supreme Court |
From Superior Court of Marion County (87,685); Clarence E. Weir Judge.
Action by Lee Dove against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)
Affirmed.
Samuel O. Pickens and Owen Pickens, for appellant.
Charles B. Clarke and Walter C. Clarke, for appellee.
Appellee recovered a judgment against appellant for damages for injury to his automobile alleged to have been caused by the negligent operation of one of appellant's trains at a street crossing in Irvington, a suburb of Indianapolis within the city limits. From that judgment appellant has brought this appeal and relies for reversal on the action of the trial court in overruling its motion for judgment in its favor on interrogatories and answers returned by the jury with its general verdict for appellee and in overruling its motion for a new trial. Both of these claims of error rest on the contention that the answers to interrogatories and the evidence on which they are based show without conflict that appellee was, as a matter of law guilty of negligence which contributed to the injury of the property involved in the action. It was averred in appellee's complaint that at the time of the injury complained of appellant owned and operated a line of railroad extending eastward through and beyond the city of Indianapolis; that its tracks crossed Ritter Avenue, a street of the city named, at right angles, and at the crossing place and for some distance west of it the tracks were in a cut from ten to thirty feet deep; that the view of the track to the west, to one approaching on the street from the north was obstructed by the north bank of the cut by growing trees and bushes and by telegraph poles; that by reason of these obstructions travelers on Ritter Avenue coming to the crossing from the north could not see a train approaching from the west until they had reached a point about ten feet from the tracks; that at the time there was in force in the city an ordinance requiring the ringing of a bell on every locomotive whenever it was moving in or through the city and prohibiting the running of any locomotive or train of cars therein at greater speed than four miles per hour; that at the time, June 20, 1911, at about 7:30 o clock p. m., appellee was driving his automobile from the north of the crossing southward over Ritter Avenue at a speed of about five miles an hour and was looking and listening intently for the approach of trains run by appellant over and along its tracks and over the crossing, but by reason of the obstructions did not and could not see any such trains until after he had come within ten feet of the crossing, when for the first time he was able to see and know that a train belonging to appellant was approaching the crossing from the west; that when appellee was first able to see and know that the train was approaching his automobile was still running about five miles an hour and before he could check and stop it, it ran onto the track on which the train was approaching and was struck and damaged; that appellant's train was negligently and carelessly run by appellant in that it was run at a reckless and dangerous speed of forty miles an hour, and that the bell was not rung, no whistle was sounded, nor was any signal of its approach to the crossing given; that the injury to appellee's property was caused solely by appellant's negligence as averred and through no fault or negligence on the part of appellee. An answer in general denial of this complaint formed the issue which the jury tried.
This being an action for damages to personal property, the burden was on appellee to aver and prove not only that the injury to his property was caused by the negligence of the appellant but that no negligence of his own contributed thereto. Cleveland, etc., R. Co. v. Tauer (1911), 176 Ind. 621, 96 N.E. 758, 39 L. R. A. (N. S.) 20. Against the general verdict for appellee, which is necessarily a finding for him on this question, appellant sets up answers to certain of the interrogatories which were submitted to and returned with answers by the jury with the general verdict, and insists that these answers establish facts which show, as a matter of law, contributory negligence on the part of the appellee and therefore overthrow the general verdict on this element of the case and require a reversal and preclude a recovery by appellee.
It appears among other facts not essential to the determination of the question raised by appellant that appellee lived about two squares south of where appellant's double track railroad crosses Ritter Avenue. He was familiar with the crossing and knew that trains frequently ran over the north track to the west and the south track to the east crossing the street at grade. Between 7 and 7:45 in the evening of the day alleged he was driving his automobile south towards his home. He stopped at a point about fifteen or twenty feet north of the north rail of the north track. This point was about twenty-seven feet north of the center of the south track. At this point a train could be seen approaching from the west on the south track 150 feet away. At this point, however, appellee could neither see the train which struck his automobile which was farther away nor hear it although its exhaust was making a noise, for the reason that the embankment was an obstruction to sight and hearing and the noise of his own motor was an interference with hearing the noise of the approaching train. In connection with these facts positive claim is made that the following interrogatories and their answers indelibly brand appellee with contributory negligence:
We have then before us a case where appellee is asserting a right to recover damages for an injury caused by a breach of duty on appellant's part in running its train at a speed of forty miles an hour over a street crossing and without giving any signals of its approach, in violation of a positive provision of municipal law, while appellee himself was exercising the measure of care which the law imposed upon him in approaching and entering upon the crossing. The general verdict necessarily finds as against these answers to interrogatories not only that appellee exercised the care that an ordinarily prudent man would use to avoid injury under the particular circumstances, but it finds also that appellant's trainmen approached and ran the train upon the crossing at substantially the speed averred without...
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