Union Traction Company of Indiana v. Haworth

• Decision Date: 04 April 1917
• Docket Number: 22,981
• Citation: 115 N.E. 753,187 Ind. 451
• Parties: Union Traction Company of Indiana v. Haworth
• Court: Indiana Supreme Court

115 N.E. 753

187 Ind. 451

Union Traction Company of Indiana v. Haworth

No. 22,981

Supreme Court of Indiana

April 4, 1917

Rehearing Denied June 19, 1918, Reported at: 187 Ind. 451 at 465.

From Clinton Circuit Court; Joseph Combs, Judge.

Action by Julia C. Haworth against the Union Traction Company of Indiana. From a judgment for plaintiff, the defendant appeals.

Affirmed.

James A. Van Osdal, Sheridan & Grueber, and Matson, Kane & Ross for appellant.

Christian & Christian, Strawn & Robinson and Wymond J. Beckett, for appellee.

OPINION

Myers, J.

Appellee brought this action in the Hamilton Circuit Court against appellant to recover damages for personal injuries sustained in a collision between one of appellant's interurban cars and an automobile in which she was riding. The collision occurred on September 10, 1913, at 5:30 in the afternoon, at a highway grade crossing. The venue was changed to the Clinton Circuit Court, where a trial resulted in a verdict and judgment in favor of appellee for $ 15,000.

From this judgment appellant appealed to this court, and the only error here relied on is the action of the trial court in overruling its motion for a new trial, which contains seventy-one specifications. The first two reasons are: That the evidence is insufficient to sustain the verdict, and that the verdict is contrary to law.

Appellant insists, first, that the uncontradicted evidence shows affirmatively that appellee was guilty of contributory negligence proximately contributing to her injury.

The acts of negligence charged in the complaint are in substance: (1) That appellant negligently ran its car at a high and dangerous rate of speed towards and upon the crossing where the accident occurred, and negligently struck the automobile in which appellee was riding, and thereby negligently injured her. (2) That appellant negligently ran its car at a high and dangerous rate of speed, to wit, sixty miles an hour, within 500 to 1,000 feet behind another of its cars, upon the same track and in the same direction, without giving any notice to appellee of so running its car, and negligently ran said second car against the automobile in which appellee was riding, thereby negligently injuring her. (3) That appellant negligently ran its second car towards said crossing and against said automobile upon said crossing, and negligently failed to give any signal of its approach not more than 100 rods nor less than eighty rods from the crossing where the accident happened, and negligently injured appellee.

It appears from the evidence that at the time of the accident appellee and her husband were riding in an automobile as the guests of their neighbors, Mr. and Mrs. Waltz, and without any authority to direct or control the machine or driver thereof. The machine was working splendidly, and was under full control of Mr. Waltz, who was carefully driving it. The top of the automobile was up, but there were no side curtains. The automobile party was returning to their home at Noblesville from Indianapolis over a public highway running north and south which crossed appellant's track running southwest and northeast 258 feet north of another public highway running east and west, known as the Carmel road. The east and west road crossed appellant's track at grade 625 feet southwest of the crossing where the accident happened, and is known as Gray's stop. The physical features of the vicinity north of the east and west road and east of the north and south road are substantially as follows: The ground rises gradually to the north and east. From the center of the north and south highway on the south line of the right of way northeast, parallel with the track, 170 feet, the ground is five and one-half feet higher than the highway. From this high point south, the ground rises to a point near a church, which is about 150 feet east of the north and south road. On this ground is located a cemetery with a large number of tombstones scattered over it. From the center of the railroad track along the center of the highway south to a point opposite the northwest corner of certain hitching sheds is 27.4 feet. These sheds are eleven feet high, extending north and south along the highway 71 1/2 feet, and next to the road they were completely boarded up. From the sheds to the railroad track, with the exception of two or three feet next to the sheds and about six feet of fence next to the track usually found at railroad crossings forming cattle guards, there was a plank fence five boards high. Appellant's track east of the point of the accident is laid in a cut and practically on an elevation with the highway for something like 200 feet, where the ground, as well as the track, gradually slopes downward to the east about 400 feet to a culvert over a small stream. As one approaches the track from the south line of the right of way it becomes more difficult to see between the poles; and there is a point where the poles conceal the track as would a solid wall. The poles were practically 100 feet apart.

Further, the evidence tends to show that when the party reached the Carmel road Waltz put his machine in low gear, and while continuing north toward the crossing they heard a car whistle, and in four or five seconds another whistle, and as the machine reached the right of way the car passed. Haworth, husband of appellee, testified that when he heard the whistle he could not see anything on account of the hill and, when they reached the point where he could see, he looked east but did not see a car, then to the west at the car which had just passed until it had obstructed his view to about half of the little station building to the southwest. He then turned his head to the east, and the car that struck them was so close that he could not see the top of it from under the top of the automobile; that after the first car passed he heard no whistle of any car to the east, and the automobile was running slowly, just barely moving, not over two miles per hour, and they were then about twenty-five to twenty-seven feet from the track. After the first car passed, Waltz speeded the automobile up to about four miles per hour, which was about the speed of the machine when it was struck. Appellee was riding in the rear seat with Mrs. Waltz, and on the right side of the automobile. On the west side of the road was a post on which were cross-arms, and painted thereon the words "Railroad Crossing" in black letters about three and one-half inches long, and on a board below, in red letters, the word "Danger," which could be seen by persons approaching the crossing from the south. Appellee testified that it was her first trip over the crossing, and nothing was said about their approaching it, nor did she know of it, although they passed there that morning. Her first knowledge of an interurban track at that point was when she saw the first car go by. She watched it and listened, and heard nothing but that car, and did not see the car that struck them. The first car had not reached Gray's crossing before the second car collided with the automobile. The first car made considerable noise, and she heard no whistle to her right. She did not remember seeing the church building or fences along the road, and after the first car passed she remembers nothing until after she was in the hospital. There is positive conflict in the evidence, not only as to whether or not the whistle on the second car was sounded at not more than 100 rods or less than eighty rods east of the north and south road crossing, but whether it was sounded at the first whistling post east for the first or Gray's crossing to the west. A witness who was husking corn within sixty-five steps of the crossing when the collision occurred, and on the south side of the track, heard the first car whistle for the crossing and in ten or fifteen seconds after that car passed him he heard the crash of the collision. He thinks the first car was running at a speed of from fifty to sixty miles per hour. The evidence as to the speed of the second car ranges from thirty-five to sixty miles per hour.

The following diagram will aid in better understanding the facts.

[SEE DIAGRAM IN ORIGINAL]

Appellant contends that the evidence in this case shows affirmatively that appellee was guilty of contributory negligence proximately contributing to her injury; and this contention is grounded largely, it may be said, upon the testimony of appellee. Appellant's statement of the law in the abstract is correct. The decision of this case depends upon the application of the settled rules of law to the disputed and undisputed evidence. In this regard the true rule requires that we look not only to the evidence but to such inferences as the jury might fairly draw supporting the general verdict. Southern Product Co. v. Franklin Coil Hoop Co. (1914), 183 Ind. 123, 106 N.E. 872.

In this case the negligence, if any, of Waltz, the driver of the vehicle, cannot be imputed to appellee, who was a passive guest. Miller v. Louisville, etc., R. Co. (1891), 128 Ind. 97, 99, 27 N.E. 339, 25 Am. St. 416; Indiana Union Traction Co. v. Love (1913), 180 Ind. 442, 99 N.E. 1005; Wabash R. Co. v. McNown (1912), 53 Ind.App. 116, 99 N.E. 126, 100 N.E. 383; City of Gary v. Geisel (1915), 59 Ind.App. 565, 108 N.E. 876; Schultz v. Old Colony Street R. Co. (1907), 8 L. R. A. (N. S.) 597, note. While this is true, yet appellee was not exempt from the exercise of ordinary care to avoid danger. Her duty as to care, then, was that of an ordinarily prudent person under like circumstances and situation at the time of the injury. Miller v. Louisville, etc., R. Co. supra.

The evidence tends to prove that both cars were running at the rate of fifty to sixty miles per hour, and...