Vincennes Traction Co. v. Curry

• Decision Date: 02 June 1915
• Docket Number: No. 8513.,8513.
• Citation: 59 Ind.App. 683,109 N.E. 62
• Parties: VINCENNES TRACTION CO. et al. v. CURRY.
• Court: Indiana Appellate Court

59 Ind.App. 683

109 N.E. 62

VINCENNES TRACTION CO. et al.

v.CURRY.

No. 8513.

Appellate Court of Indiana, Division No. 1.

June 2, 1915.

Appeal from Circuit Court, Daviess County; James W. Ogdon, Judge.

Action by William C. Curry, as administrator, against the Vincennes Traction Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.James Wade Emison, of Vincennes, M. S. Hastings, J. G. Allen, E. E. Hasting, A. W. Allen, W. R. Gardiner, C. K. Tharp, and C. G. Gardiner, all of Washington, Ind., for appellants. John Wilhelm and S. G. Davenport, both of Vincennes, and A. J. Padgett and Alvin Padgett, both of Washington, Ind., for appellee.

SHEA, C. J.

Appellee, as administrator of the estate of Burtis A. Curry, deceased, brought this action against appellants to recover damages for the alleged negligent killing of his decedent while the latter was a passenger on one of appellants' street cars in the city of Vincennes, Ind.

It appears, in substance, from the first paragraph of amended complaint: That appellant Vincennes Traction Company since January 1, 1910, has owned and operated a street railway in the city of Vincennes, Ind., and appellant Vincennes Traction & Light Company owned and operated said railway from August 7, 1909, to January 1, 1910. That the track of said railway crossed at grade on second street in the city of Evansville a track of the Evansville & Terre Haute Railroad, a steam railroad. On August 7, 1909, about 10 p. m., decedent was a passenger on one of the cars then owned and operated by the Vincennes Traction & Light Company, and, as said street car approached the steam railroad crossing, a train of refrigerator cars with two men with lighted lanterns thereon was being pushed by a steam locomotive on said railroad track toward the crossing, and the street car and train of cars approached said crossing at the same time. That as the street car approached the crossing, and while yet a safe distance of 15 or 20 feet therefrom, the train of cars on the railroad track was only 30 or 40 feet therefrom, moving at a speed of 4 or 5 miles an hour, and could have been seen and heard by the motorman and conductor, employés of appellant in charge of the street car, had they looked and listened or exercised due diligence before going upon the crossing. That the motorman and conductor carelessly and negligently ran said street car toward and on said crossing, when said train of cars was approaching the crossingand only 20 feet distant therefrom, at a speed of 4 or 5 miles an hour, without stopping the street car at a safe distance from the crossing, and waiting for the train of cars to pass over same, and negligently and carelessly failed and neglected to look and listen and ascertain before running the street car on said crossing whether any train was approaching on the railroad track near enough to endanger the safe passage of the street car over the crossing. That immediately before the train of cars struck said street car, and while said street car was on the crossing, decedent saw the train of cars approaching so close and at such a rate of speed that a collision was imminent, and, in trying to save and protect himself from death or serious injury, quickly got off said car at the side opposite the one toward which the train was approaching, and the only one open for passengers to enter and leave said car, and attempted to flee from the threatened danger, but, as he did so, and before he could get away, the street car was, while on the crossing, struck by the train of cars, pushed and knocked off the track, and turned over on decedent, causing his death. That decedent was 23 years old, and this action is brought for the benefit of his father and mother to whose support he contributed. Appellant Vincennes Traction Company is made a party to the action by reason of the fact that after the death of appellee's decedent, and before this action had been brought, the Vincennes Traction & Light Company conveyed all its property, franchises, and holdings to the Vincennes Traction Company, thereby leaving the former without any property against which a judgment could be enforced, and it is sought to follow the property then and now in the hands of the Vincennes Traction Company. The second paragraph is the same as the first, except that it is alleged that decedent was still on the car when it was struck, and was thrown out on the ground, and the car thrown on top of him, thereby causing his death.

The court overruled demurrers addressed to each paragraph of the complaint. An answer in general denial formed the issues tried by the court without the intervention of a jury, resulting in a finding and judgment for appellee.

The errors assigned are the overruling of appellants' demurrer to each paragraph of complaint and the motion for a new trial.

[1] Appellants present no question as to the sufficiency of the complaint in the points and authorities, so that assignment of error is waived.

It is properly presented and argued in appellants' behalf that the court erred in overruling the motion for a new trial for the following reasons: (1) That the decision and finding of the court is not sustained by sufficient evidence; (2) that the damages assessed by the court are excessive.

The evidence discloses: That the street railway was owned and operated at the time of the accident by appellant Vincennes Traction & Light Company. Subsequently, and before the trial of the cause, it was acquired by appellant Vincennes Traction Company. Its tracks crossed a switch track of the Evansville & Terre Haute Railroad Company, a steam railroad, at grade in Second street in the city of Vincennes, Ind. That said switch track extends from the main track through a narrow alley into said Second street, at said crossing. That at the time of the accident a street car, on which decedent was a passenger, was approaching said crossing from the north. At the same time, on the switch track, there was approaching said crossing from the west an engine, backing seven or eight refrigerator freight cars toward the crossing. On the car nearest the crossing were two employés of the steam railroad company with lanterns. The accident occurred about 10 o'clock at night. There were no lights on the crossing, and the moon was not shining. There was a passing switch upon the street railway lines about 50 feet from the crossing, at which point the car which came into collision with the steam railroad cars passed another street car going in an opposite direction. The evidence is conflicting as to whether the street car stopped upon said switch. The evidence is also conflicting as to whether the street car stopped at all as it approached the crossing. All witnesses except appellants' employé state the car did not stop. The speed at which the street car was moving was from two to four miles per hour. The speed at which the steam cars were moving was from about eight to twelve miles per hour. In approaching the crossing on the steam railroad, there was a sharp curve, in passing over which the wheels of the cars made a loud grinding noise by their pressure against the rails, which it is stated could be heard from one-quarter to one-half mile. The employés of the steam railroad on top of the train, when they were a distance of from 40 to 80 feet, saw the street car approaching, realized the danger of collision with the street car, and made an effort to attract the attention of the motorman and conductor of the street car by waiving their lanterns and hallooing in a very loud tone of voice, which was heard by many people in the neighborhood, on the streets and in the houses. Because of the obstructions to the view in approaching the crossing, due to the narrow alley in which the track of the steam railroad was laid, and the houses upon either side, it was regarded as a very dangerous place. The motorman and conductor were familiar with all the surroundings, and crossed over it twice each hour during the day when they were at work. There is evidence that the motorman and conductor could have seen the train on the steam railroad track approaching when the street car was from 20 to 40 feet from the track, and the cars on the switch track were 60 to 100 feet distant. The motorman testifies that he did not see the approaching train on the steam track until he was very near to, or on, the crossing, and the cars on the steam railroad track were about 12 feet distant. No explanation is given for the failure to see the signals given by the trainmen with lanterns or the approaching train sooner. Neither is there any explanation of their failure to hear the noise made by the train in passing around the curve, or the noise made by the train employés, which attracted the attention of passers-by, as well as residents in the neighborhood.

[2] Upon the facts thus stated, appellant insists that there...