Wabash R. Co. v. Biddle

• Decision Date: 25 January 1901
• Citation: 59 N.E. 284,27 Ind.App. 161
• Parties: WABASH R. CO. v. BIDDLE.
• Court: Indiana Appellate Court

27 Ind.App. 161

59 N.E. 284

WABASH R. CO.

v.BIDDLE.¹

Appellate Court of Indiana.

Jan. 25, 1901.

Appeal from circuit court, Adams county; D. D. Heller, Judge.

Action by Henry Biddle against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.Stuart, Hammond & Simms, E. P. Hammond, Jr., and C. O. France, for appellant.

COMSTOCK, J.

This was an action commenced in the Allen circuit court April 30, 1898, by appellee against appellant, to recover damages for injuries to his person, wagon and contents, and horses, received the day previous in a collision with one of appellant's passenger trains at a highway crossing in the country a few miles west of Ft. Wayne. Upon change of venue, it was tried in the Adams circuit court, and judgment was rendered in favor of appellee upon the verdict of the jury for $1,250. The highway where the accident occurred runs north and south. The railroad at the point where it crosses the highway runs north of east. At about 7 o'clock a. m. on April 29, 1898, as the appellee, a man of 60 years of age, was traveling on the highway to the north in a closely-covered wagon drawn by two horses, and loaded with chickens, butter, eggs, and rags, and just before the hind wheels of his vehicle had cleared the north rail of the track, they were struck by a passenger train coming from the west, and running at the speed, as the jury finds, of 40 or 50 miles an hour. The wagon and its contents were demolished, the horses slightly injured, and the appellee, though receiving no broken or fractured bones or serious flesh wounds, incurred, as was found by the jury, permanent injuries. No question is made as to the sufficiency of the complaint. It avers that appellant was negligent in failing to give the statutory signals, alleges facts for the purpose of showing the difficulty of seeing or hearing the train, and avers want of contributory negligence upon the part of the appellee. With their general verdict, the jury also, in answer to interrogatories submitted by request of the appellant, found specially upon the facts in the case. Before the discharge of the jury, appellant moved the court, in writing, to require the jury to make more specific their answer to each of certain interrogatories. This motion was overruled as a whole and as to each interrogatory, to each of which rulings appellant excepted. Appellant's motion for judgment on the special findings of the jury notwithstanding the general verdict, and for a new trial, was overruled. Appellant relies for a reversal on the fourth, fifth, and sixth specifications of errors, relating to overruling appellant's motion for judgment on the special findings, overruling its motion for a new trial, and sustaining appellee's motion for judgment.

Did the court err in overruling appellant's motion for judgment on the special findings of the jury? One hundred and twenty-eight interrogatories were submitted. These findings show that appellee was riding in a wagon closely covered over the top and at the sides, the covering extending so far to the front of the wagon that he could not see in the direction of the coming train, except by partially rising to his feet, leaning forward, and extending his head to the front of the cover. The highway by which appellee approached the railroad crossing was in a cut. On the west side thereof, the side from which the train approached, there was an embankment higher than the highway. On the top of the embankment there was a five-board fence, the boards five inches in width and five inches apart. In passing through this cut, as one nears the crossing, the view towards the railroad was at some points unobstructed, partially at some, and others wholly obstructed. The railroad consisted of a single track. He was driving gentle horses, and was familiar with the crossing. He stopped his horses when they were within 60 or 75 feet of the track. He checked them when they were 25 feet from the track. Each time he rose to his feet, protruded his head to the front of the cover of his wagon, and carefully looked in the direction from which the train came. At these times he carefully listened for the approaching train, but he did not see nor hear it. His eyesight and hearing were ordinarily good. Appellant's train was being run at the rate of 40 or 50 miles an hour. No signals of its approach were given. Appellant's negligence clearly caused appellee's injury. He was looking and listening for the danger of which the statutory signals, had they been given, would have warned him. While the failure of appellant to give notice of its approaching train could not relieve appellee from exercising care to avoid injury, yet the absence of such warning is a circumstance in determining whether he did exercise the proper degree of care. Railroad Co. v. Ogier, 35 Pa. St. 60, 71; Railway Co. v. Harrington, 131 Ind. 426, 30 N. E. 37. It has been held by our supreme court that, where there is evidence tending to show that a party injured at a railroad crossing is thrown off his guard by such means as might have such an effect upon an ordinarily prudent person, it is proper to submit the question of contributory negligence to the jury. Appellee was driving at the rate of 3 miles an hour. He made two attempts to see and hear the approaching train at the distance from the track heretofore stated. From the point 25 feet from until he reached the track, the findings do not show that he put himself in a position where he could see the train. This time, at the longest, because of the high rate of speed of the train, was but a few seconds. We do not feel warranted in saying, as a matter of law, that he was guilty of contributory negligence. We have not deemed it necessary to give in this connection a summary of all the findings. They are not all consistent, but when they are in conflict they nullify one another, and do not overthrow the general verdict. The negligence of appellant might have had the effect of throwing an ordinarily prudent person off his guard, in which case it was the province of the jury, under proper instructions of the court, to pass upon his contributory negligence. Railroad Co. v. Hedges, 105 Ind. 398, 7 N. E. 801. When the facts present such a situation that more than one inference may be drawn by men of equal intelligence and prudence, the question of due care is one of fact for the jury, and not of law for the court. Railroad Co. v. Walborn, 127 Ind. 142, 26 N. E. 207, and cases cited; Railway Co. v. Harrington, supra; Railway Co. v. Grames, 136 Ind. 39, 34 N....