Union Traction Company of Indiana v. Ringer

• Decision Date: 06 April 1927
• Docket Number: 25,169
• Citation: 155 N.E. 826,199 Ind. 405
• Parties: Union Traction Company of Indiana v. Ringer, Administrator, etc
• Court: Indiana Supreme Court

155 N.E. 826

199 Ind. 405

Union Traction Company of Indiana v. Ringer, Administrator, etc

No. 25,169

Supreme Court of Indiana

April 6, 1927

Rehearing Denied July 1, 1927.

1. NEGLIGENCE.---Answer of general denial raises issue of contributory negligence as well as defendant's negligence.---In an action by an administrator for damages for the death of his decedent resulting from the alleged negligence of the defendant, an answer of general denial not only puts in issue the negligence of the defendant, but also whether any negligence of the decedent proximately contributed to cause his injury and death (380 Burns 1926) p. 410.

2 RAILROADS.---Instruction authorizing recovery for death of driver of truck in collision with interurban train at street crossing, notwithstanding contributory negligence, was error.---In an action against a railroad company for the death of the driver of an automobile truck in collision with an interurban train at a street crossing, an instruction withdrawing from the consideration of the jury all evidence as to the driver's contributory negligence in driving on the track in front of an interurban train and authorizing plaintiff's recovery notwithstanding the contributory negligence of the decedent, even though the defendant could not have prevented the death by the exercise on its part of any care that was possible after decedent's contributory negligence had ceased to operate as a proximate cause, should not have been given. p. 413.

3. NEGLIGENCE.---Negligent person can only recover for injuries by another when latter's negligence was sole proximate cause of injury.---A person who was himself negligent can only recover for the negligence of another when the proximate cause of the former's injury was the other's negligence, and his own negligence, even though it contributed thereto in some degree, was not really a proximate cause thereof because it had ceased to operate before the injury was inflicted. p. 415.

4. RAILROADS.---Instruction authorizing recovery for death in collision with interurban while driving across track if deceased was not negligent after collision, held error.---In an action against a railroad company for the death of a person struck by an interurban while driving across the track at a street crossing, an instruction that even though the negligence of the decedent and of the defendant before the collision had operated to cause it, yet, if neither the deceased nor the defendant had been guilty of further negligence after the collision which contributed to cause the injury, the plaintiff was entitled to recover, was error, such condition not being within the doctrine of antecedent and subsequent negligence. p. 415.

5. TRIAL.---Instruction directing jury not to consider negligence of person killed in crossing accident under complaint based on doctrine of "last clear chance," held error.---In an action for the death of a party who drove a motor truck on an interurban track in front of a rapidly moving train, an instruction directing the jury not to consider decedent's negligence before or after the collision in determining the liability of the defendant under a paragraph of the complaint seeking a recovery under the doctrine of "last clear chance," was error, where there was evidence that deceased was not injured by the collision but that his death was caused by defendant's inability to stop the train because of defective brakes which were rendered ineffective by decedent's contributory negligence. p. 416.

6. RAILROADS.---Contributory negligence will not bar recovery where railroad failed to use reasonable care to avoid injury after discovering injured person's peril.---Contributory negligence in driving in front of a rapidly-moving train will not preclude recovery where defendant's employee's operating the train actually knew, in time to have avoided the injury, that the driver was unconscious of his danger and they failed to use the means at hand, by the exercise of reasonable care, to stop the train and thus avoid the injury; such negligence being regarded as a failure to take advantage of the "last clear chance." p. 417.

7. RAILROADS.---Issue of contributory negligence held for the jury where plaintiff's decedent drove truck in front of rapidly-moving train and collision disabled train's brakes.---Where there was evidence that the negligence of plaintiff's decedent in driving a truck on the track in front of a rapidly-moving train contributed to his death, the collision disabling the brakes on such train so that it could not be stopped or controlled until it had pushed the truck 100 feet or more and turned it over, an instruction withdrawing the issue of his contributory negligence from the consideration of the jury, was error, as the defendant had the right to go to the jury on the issue joined by its answer of general denial whether the decedent's negligence had proximately contributed to cause his injury. p. 417.

From Hendricks Circuit Court; Zimri E. Dougan, Judge.

Action by Charles A. Ringer as administrator against the Union Traction Company of Indiana. From a judgment for plaintiff, the defendant appealed to the Appellate Court. (Transferred to the Supreme Court under § 1351 Burns 1926).

Reversed.

J. A. Van Osdal, Ralph K. Kane, Gideon W. Blain and Robert Hollowell, Jr., for appellant.

Frank B. Ross, Edward H. Knight, Beckett & Beckett and Shirley, Whitcomb & Dowden, for appellee.

Myers J. Martin, J., not participating.

OPINION

Myers, J.

Appellee recovered a judgment of $ 4,000 damages for the death of his decedent, who was killed when an automobile truck that he was driving overturned upon him, after having collided with a train of electric interurban cars at a highway crossing.

The only error assigned and not waived is the overruling of appellant's motion for a new trial, wherein it specified as errors the giving of certain instructions, the refusal to give certain others, and that the verdict is not sustained by sufficient evidence.

The first paragraph of complaint was dismissed, and the case was submitted to the jury upon the issues formed on the second and third paragraphs. In addition to the formal allegations, the second paragraph of the complaint alleged, in substance, that defendant operated northward from the city of Indianapolis, to and over tracks laid in Ninth street across Christian Avenue in the city of Noblesville, an electric train of cars equipped with air brakes and devices for stopping, and with whistles and devices for giving signals; that, before reaching the street crossing, the train passed through a closely built up five-block section of the city, with public school grounds at the northeast corner of the before-mentioned intersecting streets. A person driving west on Christian avenue east of Ninth street could not see south along defendant's tracks, because of the buildings, trees, vines and shrubbery at the southeast corner of these streets, and could not see cars approaching from the south until "practically on or very close to" defendant's tracks; that the crossing was much used and 150 feet south of it was a sign directing all motormen to "run slowly" to and past the public school; but that defendant negligently ran the train toward and upon the crossing at the high and dangerous rate of speed of forty to fifty miles an hour, without having it under control and without giving any warning of its approach; that plaintiff's decedent was driving an automobile truck west on Christian avenue and across said track as defendant's train approached, and, when defendant's motorman saw said truck on the crossing, he immediately applied "the air brakes in emergency" and attempted thereby to stop the train, but, by reason of said high and dangerous rate of speed, he was unable so to do, until the train had struck decedent's truck on the crossing and had shoved it 240 feet ahead of the train; that decedent was not injured by the collision, nor until the truck had been so shoved about 100 to 150 feet, when it was overturned by the train and he was thereby killed. That if the train had been operated at a reasonable rate of speed up to the time the brakes were applied, it could and would thereby have been stopped before the truck was overturned and before the decedent was injured, and that the high and dangerous rate of speed was the proximate cause of decedent's death.

Counsel for appellee, in giving their interpretation of the second paragraph, say that "the high rate of speed at which this train of cars approached and ran on to the crossing was the sole proximate cause of decedent's death"; that under the state of facts alleged, a speed of ten or fifteen miles an hour would have constituted due care, and at that speed the brakes would have stopped the train before the truck was upset, and decedent would not have been injured; that "it was negligence to approach this crossing at from forty to fifty miles an hour."

The third paragraph of complaint, in describing the manner in which the injury was caused, alleged that plaintiff's decedent drove a truck loaded with bailed straw along Christian avenue from the east and upon the crossing in Ninth street, "and that while said truck was on and passing over defendant's said track at said point defendant ran one of its interurban cars . . . against said truck and negligently pushed or shoved said truck ahead of said car a distance of about 240 feet; that defendant's motorman saw the decedent in said truck . . . and saw and realized the decedent's peril . . . from the time he so struck said truck with said interurban car and at all times thereafter but . . . negligently failed to use the brakes and appliances on said interurban car to stop said car and avoid injuring and killing...