Wabash R. Co. v. McNown

• Decision Date: 27 June 1912
• Docket Number: No. 7,638.,7,638.
• Parties: WABASH R. CO. v. McNOWN.
• Court: Indiana Appellate Court

53 Ind.App. 116

99 N.E. 126

WABASH R. CO.

v.McNOWN.

No. 7,638.¹

Appellate Court of Indiana, Division No. 1.

June 27, 1912.

Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge.

Action by Charles S. McNown, administrator, against the Wabash Railroad Company and others. Judgment for plaintiff, and defendant railroad company appeals. Affirmed.Stuart, Hammond & Simms, Allison E. Stuart, and J. Fred France, for appellant. Lesh & Lesh, for appellee.

HOTTEL, C. J.

Action against appellant, Timothy Mills, and Viola Mills to recover damages for the death of appellee's decedent alleged to have resulted from the negligence of appellant and said Mills and Mills. The injury to deceased from which her death resulted occurred at a street crossing of appellant's railroad at the town of Andrews, Ind. The issues of fact were tendered by a complaint and a general denial thereto. There was a trial by jury resulting in a verdict of $1,000 for appellee against appellant and Timothy L. Mills, with which was filed answers to interrogatories. From a judgment on the verdict appellant alone prayed and perfected a term time appeal.

Appellant's demurrer to the complaint was overruled, as was also its separate motion for judgment on the answer to interrogatories. These rulings, exceptions to which were properly saved, present the only errors assigned and relied upon by appellant.

In view of the questions presented, especially by the motion for judgment on the answers to the interrogatories, all of the essential averments of the complaint upon which proof might have been introduced are important, and we therefore set out the averments or the substance of such as are necessary to an understanding of such questions. The complaint alleges in detail the facts with reference to appellant being a corporation and operating its railroad through said town of Andrews and across the public street thereof at the crossing where appellee's decedent was killed, and also the facts with reference to said Mills and Mills being engaged in the business of a common carrier carrying persons and baggage for hire by hack, drawn by horses, over and upon the main street of said town, which crossed appellant's said railroad track, and that on the day appellee's decedent, Luella B. McNown, was killed, she had taken passage on said hack from her home south of said railroad track to the interurban station north thereof. Said complaint then proceeds, in substance, as follows (we italicise parts italicised by appellant in its brief): “That said hack was at said time being driven by William Bowls, *** the agent and employé of the defendants Mills and Mills; that as the hack on which the said Luella was riding was about to cross said railroad in making the trip to said interurban station, and while she was a passenger thereon as aforesaid, a train approached from the cast at a high speed, and the driver of said hack whipped or otherwise caused the horses hitched thereto and which were drawing the same to plunge forward in order to cross said railroad before the arrival of said train, and as the wheels of the carriage struck the rails of said railroad said Luella B. McNown was thereby thrown, or caused to fall, from said hack upon said railroad and said approaching train thereupon ran on, against and over her body, and inflicted injuries from which she immediately died; *** that the injuries and death of said Luella was caused by the gross negligence of the defendants, which negligent conduct and acts were as follows:” Here follow averments showing that the view of a train approaching from the east was so completely obstructed as to prevent the traveler approaching the crossing from the south from seeing the same until he “ would almost enter upon the right of way of said railroad,” and “ until a team approaching from the south would get so near the main track of said railroad that it would be difficult and dangerous to undertake to turn the team and vehicle, and avoid a collision by waiting until after the passage of the approaching train to make the crossing.”

The use by appellant for some time prior to appellee's death of an electric bell or gong at said crossing to warn travelers of the approach of trains and the manner, character, and purpose of such gong is alleged in detail, after which it is averred that for several days prior to said 27th day of June, 1908, and on said day up to and including the time of said accident, said electric gong or bell had been out of order and repair, and was suffered to become and remain out of repair to such an extent and in such a manner that said bell or gong sounded continuously without regard to whether there was or was not a train approaching said crossing; that on said day said gong or bell rang continuously; that the hack driver knew of the condition of said electric bell, and for this reason was inattentive to its ringing as said hack approached, and the noise of said gong or bell obstructed the sound of the coming train, such as usually attends the operation of trains; that said train consisting of a locomotive and 25 or 30 freight cars was being operated “at a dangerous rate of speed, to wit, from 35 to 40 miles per hour.” Knowledge by appellant of all the conditions present at said crossing, including character and frequency of travel over same, obstructions to view, the defective condition of the electric bell, and its interference with hearing an approaching train, is averred with particularity. Then follow averments of negligence on the part of Mills and Mills as follows, viz.: “ that their agent and employé as he approached said railroad just prior to said accident heard said gong or bell, but said paid no heed to it; that passengers in said hack, who also heard said gong or bell, called to him that a train was approaching, but he paid no heed to such warning, and bystanders by the side of the street called that a train was coming, but, on account of the noise of said bell or gong, he did not hear or heed such calls until too late;” that said approaching train did not as required by law give the usual signal by whistle at a point from 80 to 100 rods eastward of said crossing, and did not continuously cause the bell to ring from said point until after the passing of said highway crossing; that it was operating said train at a rate of speed which was dangerous and negligent, and said injuries and death of said decedent were wholly caused by the joint negligence of the several defendants hereto as aforesaid.

In discussing the sufficiency of the complaint appellant insists: (1) That the running of appellant's train at a speed of 35 or 40 miles an hour as alleged was not, in the absence of an ordinance prohibiting such speed, negligent. (2) That there is no law requiring a railroad company to construct or maintain an electric bell or gong at a railroad crossing, and that, therefore, the failure to maintain or keep such bell does not constitute negligence. (3) That the failure to give the statutory signals could not be the proximate cause of the death of appellee's deceased because the driver of the hack had notice of the approach of said train before attempting to cross the track. (4) That for said reasons no actionable negligence is charged against appellant.

[1] It is true, as appellant contends, that the running of a train at 35 or 40 miles an hour in the absence of an ordinance or statute prohibiting such speed does not necessarily constitute negligence. The running of a train at such speed through a town or city in violation of an ordinance would be negligence per se. Penn. Co. v. Horton, 132 Ind. 189, 31 N. E. 45;Louisville R. Co. v. Davis, 7 Ind. App. 222, 33 N. E. 451;Shirk v. Wabash R. Co., 14 Ind. App. 126, 42 N. E. 656. But, in the absence of an ordinance governing the same, whether the running of a train at a given rate of speed alleged to be negligent, in fact, constitutes negligence on the part of such railroad company, depends upon the conditions, situation, and circumstances averred in each particular case. Chicago, etc., R. Co. v. Spilker, 134 Ind. 380-387, 33 N. E. 280, 34 N. E. 218; Elliott's Roads & Streets, 606; Lafayette, etc., R. Co. v. Adams, 26 Ind. 76;Thompson v. N. Y. Central, etc., R. Co., 110 N. Y. 636, 17 N. E. 690;Louisville, etc., R. Co. v. Jones, 108 Ind. 551, 9 N. E. 476.

[2] Under these authorities, we think the averments of the complaint in this case showing the place, conditions, surroundings, character, and frequency of the use of the crossing sufficient to show that the rate of speed alleged to have been negligent was in fact negligent. We are not unmindful of the holding in the case of Lake Shore R. Co. v. Barnes, 166 Ind. 7, 76 N. E. 629, 3 L. R. A. (N. S.) 778, relied upon by appellant. In fact, we think our conclusion as to the sufficiency of this charge of the complaint is supported by that case. We quote from that case 166 Ind. at page 12, 76 N. E. at page 630 (3 L. R. A. [N. S.] 778): “In cities and towns the conditions are generally different. The crossings are at short intervals, and the houses usually built close together and up to the line of the railroad. These not only obstruct the view of an approaching train, but retard the sound of the warning signals, and, in contrary winds, tend to make the latter misleading, and difficult, if not impossible, to hear in time for those upon the crossing to escape a rapidly approaching train. This most excellent reason for the legislative warrant for restricting the speed of trains within the corporate limits of cities and towns does not apply to the country.”

[3] As to the second contention of appellant, it must be admitted that there was no law that imposed upon appellant in the first instance the duty of maintaining an electric gong at the crossing involved, and a failure to place and maintain such gong at such crossing would not have been actionable negligence. We do not think, however, that it...