Virgin v. Lake Erie & W.R. Co.

• Decision Date: 18 April 1913
• Docket Number: No. 7,886.,7,886.
• Citation: 101 N.E. 500,55 Ind.App. 216
• Parties: VIRGIN v. LAKE ERIE & W. R. CO. et al.
• Court: Indiana Appellate Court

55 Ind.App. 216

101 N.E. 500

VIRGIN

v.LAKE ERIE & W. R. CO. et al.

No. 7,886.

Appellate Court of Indiana, Division No. 1.

April 18, 1913.

Appeal from Circuit Court, Benton County; Jas. T. Saunderson, Judge.

Action by Stanley Virgin, by his next friend, Manford Virgin, against the Lake Erie & Western Railroad Company and others. From the judgment, plaintiff appeals. Reversed, with instructions to sustain motion for new trial and for further proceeding.A. C. Harris, of Indianapolis, Fraser & Isham, of Fowler, and Thompson & McAdams, of La Fayette, for appellant. John B. Cockrum, of Indianapolis, Stuart, Hammond & Simms, of La Fayette, and E. G. Hall, of Fowler, for appellee.

FELT, P. J.

This is a suit by appellant against appellee for damages for personal injuries alleged to have been received on account of the negligence of appellee. The jury returned a general verdict against appellant and with it answers to interrogatories. The court overruled appellant's motion for a new trial, and rendered judgment on the verdict. The error assigned is the overruling of said motion.

The accident which is the basis of this suit, occurred in the daytime on November 23, 1905, at what is called the “Blasdell Crossing,” within the corporate limits of the town of Boswell, Ind. Appellee's road consisted of three tracks, running east and west through the town, and intersecting the north and south streets thereof, which were five in number and each sixty feet in width. The town contained a population of about 1,000, and the railroad divided it near the center. Appellee's depot is located on the south side of the tracks and in the fourth square west of the Blasdell road and west of Clinton street. The grain elevators mentioned in the evidence are located north of the tracks. The Blasdell road is the farthest street east in the town, and runs north and south across the railroad. The other streets which cross the railroad are west of said road, and in their order are named Harold, Center, Clinton, and Adams. Main street runs east and west through the town, and is the first street south of the railroad. North street runs in the same direction, and is north of the railroad. The main track of appellee's road is the one farthest north, the next is known as the passing track, and the one farthest north is called the house track.

Appellant was a farm hand, and on the day of his injury was hauling corn to one of said elevators. At the time of, and just prior to, the accident, all of said tracks were occupied by trains, four in number. A westbound freight train consisting of 41 cars and a caboose stood on the passing track with the engine west of Clinton street and its caboose extended to the center of the Blasdell road, and left 8 feet of the crossing plank unobstructed. An east-bound freight train was on the house track, and its rear cars were west of Adams street. The engines of these two trains overlapped. A westbound passenger train had entered, and was standing on the passing track 400 feet east of the Blasdell road. The train which struck appellant was going east on the main track. After appellant had disposed of his load of corn, he returned to Adams street, which he had crossed going to the elevator, for the purpose of crossing the railroad and going to the farm south of the town from which he was hauling corn. Finding the track obstructed, he turned north, entered North street, and drove east along that street until he came to the Blasdell road, where he turned south for the purpose of crossing the railroad on that street in order to reach his destination.

The evidence tends to show that the railroad was built through said town in 1871-1872; that a fill of about 3 1/2 feet was made across the Blasdell road upon which appellee's road was constructed; that the station is 1,024 feet west of said road, and there is a downgrade of about 3 1/2 feet from the station to said road; that the approaches to the crossing on said road were made by cutting ditches on the side of the road and placing the dirt in the center of the highway; that the approaches were about 16 feet wide and in the center of the highway at the tracks appellee had placed boards 16 feet in length as a means of crossing the tracks.

The evidence tends to show that there was no one at the Blasdell road to warn appellant; that his view was obstructed by the freight trains, the cars of which were 12 or 14 feet high; that the engine of the eastbound passenger train was not laboring and the train approached with but little noise, downgrade at a speed of about 15 miles per hour; that no warning was sounded of its approach to the crossing; that there was a bump board on the west side of appellant's wagon, as he drove south, which extended above his head; that as he approached the tracks he took his position in front of the wagon, brought his team to a slow walk, stilled his wagon to aid him in hearing any sound that might indicate danger, looked to the west and listened, but heard no signal or noise to indicate the approach of a train or any danger, kept his team under careful control, did not stop, but drove around the end of the caboose onto the track, and was struck and injured as alleged in his complaint. The issues before the jury involved the question of appellee's negligence, appellant's contributory negligence, and the proximate cause of the alleged injury.

[1] In determining the correctness of instructions, we are to keep in mind the issues and the facts of the case as disclosed by the pleadings and evidence. The instructions given should correctly inform the jury as to the law applicable to the case, and leave them free to determine the facts from the evidence on all questions where there is a conflict in the evidence, or where the facts, though undisputed, are of such a character that reasonable minds might draw different conclusions therefrom.

[2] It is a general rule of law that the rights of a railroad company whose tracks are lawfully on or across a public highway, and a person lawfully using such highway, are equal except in the priority of right of the company in the use thereof when both desire to use the highway at the same time and place. Lake Shore & M. S. Ry. Co. v. Myers, 100 N. E. 313.

The foregoing statement of the law presupposes that neither party is at fault. The right of precedence on the part of the company has been held to be dependent upon its giving due notice of the approach of its trains to the crossing. In Evansville, etc., R. Co. v. Berndt, 172 Ind. 697, at page 701, 88 N. E. 612, at page 614, it is said: “The rights of the railroad company and the public to the use of highway crossings are equal, except that the company is entitled to precedence in passing upon giving due notice of its desire and purpose so to do.”

[3] A railroad crossing at grade is a known place of danger. The appellant in approaching and attempting to cross appellee's tracks was required to use ordinary care and prudence to avoid any accident or injury. The law presumes that he did see and hear that which he could so observe in the exercise of ordinary care for his own safety.

[4] Ordinary care is that care which an ordinarily prudent and cautious person would use under like circumstances and conditions to avoid injury, and such care is always proportionate to the known danger. C., C., C. & St. L. Ry. Co. v. Federle, 98 N. E. 123; Cleveland, etc., Ry. Co. v. Houghland, 44 Ind. App. 73, 83, 85 N. E. 369, 88 N. E. 623.

[5] If, under all the circumstances existing at the time and place of the accident, appellant used ordinary care in approaching and attempting to cross appellee's tracks, he cannot be charged with any higher or different degree of care on account of any obstructions, wrongful conduct or failure of appellee to discharge any duty incumbent upon it under the circumstances. In other words, any fault or negligence of appellee cannot enlarge or change the rule of care as to appellant from that of ordinary care.

[6] On the other hand, if appellee by obstructions or other negligent acts or omissions made the crossing more hazardous to persons desiring to use the highway, it became and was its duty to use such care and to give such warnings of the approach of its trains to the crossing as were commensurate with the increased hazard occasioned by such conditions or conduct. P., C., C. & St. L. Ry. Co. v. Lynch, 43 Ind. App. 177, 181, 87 N. E. 40; C., C., C. & St. L. Ry. Co. v. Federle, supra; C., C., C. & I. Co. v. Harrington, 131 Ind. 426-433, 30 N. E. 37;Chicago & Erie R. R. Co. v. Fretz, 173 Ind. 519-526, 90 N. E. 76; Cherry v. Louisiana, etc., R. R. Co., 121 La. 471, 46 South. 596, 17 L. R. A. (N. S.) 505, 126 Am. St. Rep. 323. In Cleveland, etc., R. Co. v. Miles, 162 Ind. 646, at page 651, 70 N. E. 985, at page 986, it is said: “The running of locomotives and trains at a high rate of speed over street crossings in a city, even where the ordinary signals or the statutory warnings are given, may constitute negligence, and render the company liable for injuries occasioned thereby. *** If the dangers of the situation require it, extraordinary precautions must be taken by the company to protect the public from injuries likely to occur at such crossing.” On page 650 of 162 Ind., on page 986 of 70 N. E., it is said: “The degree of care to be exercised by the company must be commensurate with the dangers of the particular situation created by its use of the street.” See, also, Lake Shore & M. S. Ry. Co. v. Myers, 98 N. E. 654-656, and cases cited.

[7] The law does not undertake to arbitrarily determine the place or distance from the track where one approaching a crossing must look and listen, but the test is, did he under the particular circumstances exercise ordinary care in selecting the place and in looking and listening for approaching trains?

[8] Obstructions placed by a railway company on its tracks, its failure to give signals of the approach...