Wabash R. Co. v. Biddle

• Decision Date: 25 January 1901
• Parties: WABASH R. CO. v. BIDDLE.
• Court: Indiana Appellate Court

27 Ind.App. 161

60 N.E. 12

WABASH R. CO.

v.BIDDLE.

Appellate Court of Indiana.

Jan. 25, 1901.

Dissenting opinion.

For majority opinion, see 59 N. E. 284.

*12WILEY, J.

At the close of the original opinion (59 N. E. 284, 286), I stated that I concurred in the conclusion reached, but dissented from that part of the opinion holding that the facts specially found were not in irreconcilable conflict with the general verdict. An examination of the record, embracing the interrogatories and the answers thereto, has led me to the firm conviction that the general verdict and the answers to interrogatories cannot stand together. If there is a reported case in this jurisdiction where there is an irreconcilable antagonism between the general verdict and the answers to interrogatories, the record here presents such a case. There is no system of reasoning by which the two can be said to be in harmony. I recognize the rule that the two may conflict and still the general verdict may stand, and that it is only where the conflict is irreconcilable upon any reasonable hypothesis that the facts specially found will control the general verdict and override it. To my mind that condition exists here, and, when the condition does exist, it is the duty of the court to declare the law, and the law says that the general verdict must fall, and judgment follow in harmony with the facts specially found. The rule is and should be adhered to that, if the party in whose favor a general verdict has been returned is not entitled to recover, the court should direct a judgment in favor of his adversary. Litigations should cease when the facts show that the plaintiff cannot recover. This, to my mind, is what the record shows in this case, and judgment should have been directed for appellant.

The prevailing opinion does not state all the material facts as found by the jury, and the writer of the opinion so states. To make clear the views I entertain, it will be necessary to state some of the facts specially found, which to my mind show that appellee was guilty of such contributory negligence as to preclude a recovery, and in so doing I may have to restate some of the facts set out in the original opinion.

The highway upon which appellee was traveling ran substantially north and south. Appellant's railroad ran northeasterly and southwesterly. The line of the railroad for more than a mile southwesterly of the crossing was straight. For 600 feet southwesterly from the crossing the railroad ran through a cut. At distances of 300 and 500 feet southwesterly from the crossing the elevation was 8 feet and 5 inches above the track, and this was the greatest elevation. Adjacent to the right of way, and about 1,600 feet southwesterly from the crossing, there was a grove. There were no trees or buildings on the right of way south of the track between the highway and the grove. The highway for a distance of 30 feet south of the track was on lower ground than the adjacent right of way. The train that caused the injury was going in a northeasterly direction, and appellee was driving to the north. Appellee was in a covered wagon drawn by two horses. The cover was made of canvas, and extended to the top and sides 20 inches from the front of the seat on which appellee was sitting. Appellee had driven 13 miles, having started on his journey at 3 o'clock in the morning. His wagon was loaded with chickens, butter, etc., and *13weighed 1,000 pounds. The distance from the top of the smokestack of the engine to the rail was 13 feet, and the distance from the top of the cab to the rails was 12 feet. When appellee was sitting on his seat in the wagon, he was prevented by the cover of his wagon from looking to the west and southwest in the direction from which the train was coming, and could not while so riding look carefully in such direction without leaning forward, and protruding his head to the front of the covered wagon. Sixty or 75 feet from the crossing appellee stopped or checked his horses, rose to his feet, protruded his head to the front, and looked in the direction the train was coming. When within 25 feet of the crossing he checked the speed of his horses, and partially arose from his seat, and protruded his head to the front of the cover, and looked in the direction from which the train was coming. He did not again, before driving onto the track, place himself with reference to the cover of his wagon so that he could carefully look in the direction from which the train was coming. If appellee had stopped his horses when he was within 5 feet of the track, and had placed himself so as his sight would not have been obstructed by the cover of his wagon, he could have seen the train from 300 to 500 feet. When his horses were 10 feet from the track, if he had stopped them, and placed himself so the cover would not have intercepted his vision, he could have seen the train for a distance of 150 feet. The jury found, in answer to six separate interrogatories, that when appellee's horses were at points 50 feet, 60 feet, 70 feet, 80 feet, 90 feet, and 100 feet south of the railroad track he could, by carefully looking, have seen the train 1,600 feet west of the crossing; or, to put it as found by the jury, he could have seen the train as far as the grove, and the grove was 1,600 feet west of the crossing. A person of good eyesight, traveling in an open conveyance on the highway, could, at points 150 and 125 feet south of the track, have seen the approaching train as it approached from the southwest a distance of 2,250 feet, and thence continually until the train reached the crossing. Appellee's eyesight and hearing were ordinarily good. For a distance of 150 feet before entering upon the railroad track, appellee was driving at the rate of 3 miles per hour. His horses were gentle and easily managed. The sun was shining and the weather was good. The crossing was dangerous to persons coming from the south. Appellee for a number of years previous to the accident had frequently passed over the crossing, and was familiar with it.

The facts as thus found show as flagrant a want of care and caution on the part of appellee as any reported case that I can now call to mind. For the court to say as a matter of law that a traveler on a public highway approaching a railroad crossing is not guilty of contributory negligence, under such facts as the record here discloses, is, in effect, to eliminate the question of contributory negligence as a principle of law from cases of this character. Not only this, but the rule declared in the prevailing opinion is in direct conflict with all the cases of a similar character decided by the supreme court, and directly overrules many cases in this court involving the same question.

A brief review of some of the leading cases in our courts will support this position. I will preface a review of the authorities by referring to the wholesome and well-defined rule that, when a person crossing a railroad track is injured by a collision with a train, the fault is prima facie his own, and he must show affirmatively that his fault or negligence did not contribute to the injury before he is entitled to recover. Aurelius v. Railroad Co., 19 Ind. App. 584, 49 N. E. 857, and authorities there cited; Railway Co. v. Boyts, 16 Ind. App. 640, 45 N. E. 812; Railroad Co. v. Stick, 143 Ind. 449, 41 N. E. 365. Also that where such crossing is extra hazardous on account of obstructions, etc., increased care is imposed upon the traveler. His care in such case is commensurate with the danger. He must assume that there is danger, and act with particular care and prudence upon that assumption. Beach, Contrib. Neg. (3d Ed.) § 183; Railway Co. v. Boyts, supra; Aurelius v. Railroad Co., supra; Towers v. Railroad Co., 18 Ind. App. 684, 48 N. E. 1046. The opinion in the case last cited was written by Comstock, J., and it is proper to say that in that case there was a special verdict.

In Cones v. Railway Co., 114 Ind. 328, 16 N. E. 638, the deceased was killed at a crossing by a train running at an excessive speed, and without giving the required signals. There was a general verdict for the plaintiff, but, in answers to interrogatories, the jury found that he was familiar with the crossing, and that he might, by looking, have discovered the approaching train in time to have avoided the accident. The trial court sustained the defendant's motion for judgment on the ground that the facts specially found showed that the deceased was guilty of contributory negligence, and the supreme court affirmed the judgment.

In the case of Railway Co. v. Hedges, 118 Ind. 5, 20 N. E. 530, appellee's deceased was killed at a crossing. There appellant's train was coming into a station where there was a water tank. There was a main track and two side tracks. The engine was cut off from the train, and with accelerated speed was run to the water tank. The grade was descending, and the train was permitted to run down grade following the engine. The deceased saw the engine pass, and undertook to cross the track upon which the train was approaching. When within nine feet from the track upon which the train was approaching he could have seen it if he had *14looked, and thus have avoided the accident. He did not look, and was killed. There was a general verdict for the plaintiff, and the company's motion for judgment on the answers to interrogatories was overruled. On appeal, the judgment was reversed, and judgment directed for appellant.

In the case of Cadwallader v. Railway Co., 128 Ind. 518, 27 N. E. 161, appellant was approaching a railroad crossing with which she was familiar. It was especially found that when she was within 20 feet of the tracks she had an unobstructed view along the track in the direction from which the train was coming for a distance of 100 feet, and when within 10 feet of the track she had an unobstructed view for a distance of 300 feet, and could have seen the...