Wabash Railway Company v. Tippecanoe Loan and Trust Company
| Decision Date | 05 April 1912 |
| Docket Number | 22,083 |
| Citation | 98 N.E. 64,178 Ind. 113 |
| Parties | Wabash Railway Company v. Tippecanoe Loan and Trust Company, Administrator |
| Court | Indiana Supreme Court |
Rehearing Denied June 6, 1912.
From Superior Court of Tippecanoe County; H. H. Vinton, Judge.
Action by the Tippecanoe Loan and Trust Company, as administrator of the estate of Patrick McLaughlin, deceased, against the Wabash Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)
Reversed.
Edwin P. Hammond, Dan W. Simms and William V. Stuart, for appellant.
Wilson & Quinn and Charles E. Thompson, for appellee.
Appellee sued appellant for damages for alleged personal injuries to appellee's decedent, resulting in his death.
Answer of general denial. Trial by jury; verdict and judgment for appellee. Answers to submitted interrogatories were returned with the general verdict. Appellant's motion for judgment on answers to interrogatories was overruled, as was also its motion for a new trial. The overruling of each of these motions is presented here for review.
The complaint, among other things, alleges that at the time of the accident complained of, appellant owned and operated a steam railroad, with double tracks, through the city of Lafayette; that Fourth street ran north and south through the city, and was crossed by appellant's tracks running in a diagonal direction from the southwest to the northeast; that on the west side of the street there was an embankment, extending several hundred feet from the railway crossing, which so obstructed the view of appellant's tracks that pedestrians on the street could not see the same until they approached within a few feet of the track; that near this crossing was a viaduct, under the surface of Fourth street, through which was located the tracks of the Monon railway, which was then in operation.
It was also alleged that a city ordinance of Lafayette--a copy of which was filed with the complaint--required those in charge of a locomotive to keep some discreet person on the lookout in a position where he could see persons on the track in front of the locomotive or cars, with power to stop the same at a moment's warning; and that the same ordinance prohibited locomotive or train speed in the city limits in excess of six miles per hour.
It is also alleged that, previous to the accident, defendant had maintained a watchman at the crossing, which fact decedent knew, and relied on him to give him warning of danger, if any, in crossing defendant's tracks; that the watchman employed was almost deaf, and was incompetent to discharge the duties of watchman, all of which defendant knew before the accident. The complaint further avers that on the afternoon of February 21, 1906, decedent was walking north, slowly and carefully, on the sidewalk, on the west side of Fourth street, approaching the crossing; that by reason of said embankment the sound of trains approaching the crossing from the southwest was deadened, and decedent was unable to see or hear any approaching train, because of the embankment; that as decedent approached the crossing, a locomotive, to which a long freight-train was attached, was passing on the Monon railway, through the viaduct, and said locomotive was puffing loudly and emitting large volumes of smoke, which passed to and settled down on the point of intersection of Fourth street with defendant's tracks, and the noise of the moving Monon freight-train, and said smoke, rendered it still more difficult for a pedestrian to hear or see the approach of a train from the southwest on defendant's railway.
It is further alleged that just prior to the accident defendant was backing a switch engine from the southwest along defendant's south track, in a northeasterly direction towards the crossing, at a negligent speed of ten miles per hour; that the engineer on the engine was negligently in such position that he could not and did not see any person on the track, or near thereto, as the engine approached the crossing, and there was no one placed on the engine in a position to see persons or objects on or near the tracks at the crossing; that as the switch engine approached, the switchman was not at the crossing, and negligently failed to appear there until after the accident; that defendant negligently failed to ring the bell or sound the whistle on the engine before the accident.
It is further averred that decedent was possessed of good sight and hearing, and approached the crossing in a slow walk, and as he stepped onto the south track of defendant, for the purpose of crossing the railroad, he was struck by the switch engine, and sustained injuries which caused his death.
It is also averred that immediately prior to the accident decedent's attention was distracted by the smoke and noise from the Monon freight-train passing through the viaduct.
The jury's answer to interrogatories submitted disclose the following facts: Decedent, while walking north on the sidewalk on the west side of Fourth street was struck by the tender of appellant's switch engine and killed. The engine was backing across the street, drawing a box-car, and running northeast at a speed of eight miles per hour. There were four of appellant's employes on the engine. No one of them saw, or was in a position so he could see, decedent before the accident, nor did any employe of appellant see him until after he was injured. No warning was given decedent of the engine's approach, by ringing its bell or sounding its whistle. The tracks crossed the street at an angle of forty degrees and fifty minutes east of north and west of south. Appellant had in its employ, at the crossing where decedent was injured, at and before the accident, a watchman named Haggerty, who gave no warning to decedent of the approach of the engine. The watchman was afflicted with deafness, and by reason of old age and infirmities was incompetent to discharge the duties of watchman; but during the time that Haggerty occupied the position of watchman, decedent was aware of the facts of his partial deafness, of his age, and of his bodily and mental infirmities, and of his incompetency properly to discharge his duties. The city ordinance, a copy of which was set out in the complaint, was in force at the time of the accident. There was also at the time, in effect, another city ordinance, which prohibited the sounding of a locomotive whistle in the city limits, unless to give thereby an alarm of fire. The jury found that the above two city ordinances were the only ones introduced in evidence.
Deceased was sixty-nine years of age, in full possession of his senses of sight and hearing, was in good health, and possessed of physical vigor and of ordinary intelligence. At the time of the accident, and for several years prior thereto, he lived a few hundred feet southeast of the crossing, and had frequently gone over it, and was familiar with it and all its surroundings. He was struck by the tender of the engine immediately on his stepping on the south track of the railroad.
An embankment between the tracks and sidewalk, south and west of Fourth street, and the noise of a freight-train on the Monon railway, deadened and drowned the noise of appellant's engine, tender and car as they approached Fourth street.
There was a running-board on the east end of the tender. Had there been a lookout on this board, he could have seen decedent in time to have warned him of the approaching engine, and thus have prevented the accident. The engine was not under such control that it could have been stopped at a moment's warning.
From the time decedent arrived at a point fifteen feet south of the south rail of the track until he was injured, there was nothing to prevent him from seeing the approaching engine on appellant's track, had he carefully looked, except a telegraph pole.
The following interrogatories, submitted at appellee's request, were answered as follows:
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