Tyler v. Chicago & E. I. Ry.

• Decision Date: 21 March 1961
• Docket Number: No. 30076,30076
• Citation: 241 Ind. 463,173 N.E.2d 314
• Parties: Dorothy Jean TYLER, by her next friend, Lowell Tyler, Appellant, v. CHICAGO & EASTERN ILLINOIS RAILWAY, Appellee.
• Court: Indiana Supreme Court

Page 314

173 N.E.2d 314

241 Ind. 463

Dorothy Jean TYLER, by her next friend, Lowell Tyler, Appellant, v. CHICAGO & EASTERN ILLINOIS RAILWAY, Appellee.

No. 30076.

Supreme Court of Indiana.

March 21, 1961.

John L. Carroll, Edwin W. Johnson, Elvin H. Hewins, Evansville, for appellant; Johnson & Carroll, Iglehart & Hewins, Evansville, of counsel.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellee.

George T. Schilling, Russell H. Hart, Lafayette, for Wabash R. Co., amicus curiae; Stuart, Branigin, Ricks & Schilling, Lafayette, of counsel.

Harker, Irwin, Campbell & Harker, Frankfort, for New York, Chicago & St. Louis R. Co. and others, amici curiae.

BOBBITT, Chief Justice.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. See Tyler v. Chicago & Eastern Illinois Railway, 1959, 163 N.E.2d 122, for opinion of the Appellate Court.

Appellant, a minor, brought this action by her next friend, seeking to recover damages for personal injuries growing out of a collision of an automobile, in which she was a non-paying passenger, and a freight car standing on a railroad crossing.

Two errors are assigned as follows:

'1. The court erred in sustaining Appellee's motion to strike portions of Paragraphs I, II, and III of Appellant's complaint.

'2. The court erred in sustaining the Appellee's separate demurrers to Paragraphs I, II, and III of Appellant's complaint as amended by interlineation.'

It is conceded that the demurrer to Paragraph III of the complaint, as amended by interlineation, was properly sustained, and we need not consider the questions raised in connection therewith.

First: The portions of appellant's complaint referred to in assigned error No. 1 consisted of photographs attached as exhibits to the complaint and a sentence referring to each of them. These photographs purported to show the puysical condition of appellant's face after the accident. On motion of appellee these photographs and the sentences referring thereto were stricken from the complaint.

Appellant asserts that such photographs were proper parts of the complaint and their inclusion was a proper method of pleading the injuries sustained. Although the law on this issue seems to be well-settled against appellant, it is unnecessary for us to consider the question because after the motion to strike was sustained appellant, by written motion, amended her complaint by deleting both the exhibits (photographs) and the language referring thereto. The issues here are presented upon the complaint, as amended. Under such circumstances any error in rulings on pleadings addressed to the original complaint only are waived. Noble Co. Council etc., et al. v. State ex rel. Fifer, 1955, 234 Ind. 172, 176, 125 N.E.2d 709; Kimble v. Jolly, 1940, 217 Ind. 698, 700, 30 N.E.2d 463.

Second: Appellant contends that Paragraph I of the complaint, as amended, is founded upon two theories (1) that the defendant-appellee was negligent in failing to provide warnings, signals, lights, reflective or other devices sufficient to notify passengers of the presence of the freight cars on the track; and (2) that the alleged custom of having 'an employee with a lantern or flare' at the crossing constituted an invitation to the public to cross the railroad tracks at the intersection, and defendant-appellee was negligent in failing to have a flagman at the crossing at the time of the accident.

Rhetorical Paragraph I in parts relevant to the issues presented is set out hereinafter verbatim as follows:

'4. That at the point of intersection of said railroad tracks with said highway, the only warning thereof was a wooden cross-arm warning sign, which was nonilluminated and dirty.

'5. That as the highway approached the intersection from the northwest going southeast, it dipped sharply downgrade to a level with defendant's tracks.

'6. That it was the custom prior to said date for defendant to have an employee with a lantern or flare at said intersection to warn of the coming or existence of any train upon said tracks, which custom was known to Donald J. Joest hereinafter mentioned.

'7. That said highway at its point of intersection with said railroad tracks was a heavily traveled, state, federal and interstate highway.

'8. That at said time and place defendant by the through its agents, servants, and employees, whose names are unknown to this plaintiff, had a cut of freight cars standing on said tracks without lights, without any reflective devices, or any other device or thing to warn travelers of the existence of said railroad cars upon said tracks.

'9. That at the same time and place, darkness had fallen and there was no illumination upon said intersection, nor could the presence of said train at said intersection be discerned except by the headlights of oncoming automobiles, which headlights, because of the dip in the highway, would not shine upon said intersection until the automobile to which they were affixed approached within forty feet of said intersection.

* * *

* * *

'11. That as the automobile in which plaintiff was a passenger approached said intersection, the train of defendant railroad could not be seen because of the dip of the road and because of the negligent failure of the defendant to have any warnings or signals sufficient to notify travelers of the presence of said freight cars upon said tracks.

'12. That as the driver of the automobile in which plaintiff was a passenger approached said intersection, he saw no warning signals of any kind and believing the way was clear due to the absence thereof he failed to come to a stop in sufficient time to avoid striking said freight cars upon said tracks.'

We shall first consider appellant's second theory of rhetorical Paragraph I pertaining to the alleged custom of maintaining a watchman at the crossing. In our judgment the only allegations in the complaint, as amended, which in any way support this theory of appellant's action are to be found in numerical paragraph six where it is alleged that it was the custom, prior to the date of the accident, to have an employee with a lantern or flare at the intersection to warn of the presence of a train upon the tracks, and that this custom was known by the driver of the car.

We reaffirm the rule as stated in Gillies, by next friend v. N. Y. C. R. R. Co., 1954, 124 Ind.App. 382, 388, 116 N.E.2d 555, 558, and here relied upon by appellant, as follows:

'The general rule with regard to the duty of a railroad which installs signals, etc., at its crossing, has been stated in 75 C.J.S. Railroads page 61, § 792, as follows:

"Where a railroad company maintains a flagman, gates, or other signals or warnings at a railroad crossing, whether voluntary or as required by law, the general public has a right to presume that these safeguards will be reasonably maintained, attended and operated, and, in the absence of knowledge to the contrary, the fact that the gates are not open or the automatic bells or lights are not signalling, or the flagman is absent from his post, or if present, is not giving a warning of danger, is some indication or assurance of safety, and an implied invitation to cross on which a traveler familiar with the crossing may rely and act within reasonable limits on the presumption that it is safe for him to go on the crossing."

However, in order to withstand appellee's demurrer the complaint must allege facts which bring appellant within this rule.

In order to establish negligence in the violation of the alleged established custom in the present case, it would be necessary for appellant to show the existence of the custom, knowledge thereof and reliance thereon by the driver of the automobile involved, appellee's negligent failure to observe the custom, and a direct causal connection between such failure and the collision involved. Scott v. Missouri Pac. R. Co., 1933, 333 Mo. 374, 62 S.W.2d 834, 839; 24 A.L.R.2d 1166, Anno. Cf. Smith v. The Wabash Railroad Company, 1895, 141 Ind. 92, 40 N.E. 270; Gillies, by next friend v. N. Y. C. R. R. Co. supra, 1954, 124 Ind.App. 382, 116 N.E.2d 555.

It seems to us that if the foregoing are essential elements of proof in order for appellant here to recover, such elements must be properly alleged in the complaint, and the absence of any one of them would be sufficient ground for the sustaining of a proper demurrer.

There is no allegation that the alleged customary flagman was absent from his post and not on duty at the time of the accident, nor is there, in our judgment, any facts alleged which would support such an inference. Neither is there any allegation that the alleged flagman was present at his usual post of duty and failed to give a warning of the presence of the cars upon the crossing. Nor do we believe that such fact might be inferred from the allegations in rhetorical Paragraph I. There is also no allegation that the driver of the automobile was familiar with the crossing or that he relied upon the fact that no flagman was on duty with a lantern or flare to indicate to him that there was no train approaching or on the crossing; that because of the absence of such flagman he [the driver] presumed that it was safe for him to proceed over the crossing; and that he relied and acted upon such presumption thereby causing his automobile to collide with the freight cars standing on the track at the crossing.

Considering that none of the foregoing facts are alleged in the complaint, as amended, we are forced to conclude that appellant has not stated facts sufficient to bring them within the rule as reaffirmed in the Gillies case and hereinabove quoted.

Failure to observe the alleged custom could not be the proximate cause of appellant's injuries unless the driver of the car had knowledge of the custom, and relied upon the implied invitation created by appellee's alleged failure to observe such custom. Without...