Wroblewski v. Grand Trunk Western Ry. Co., 471A68

• Decision Date: 21 December 1971
• Docket Number: No. 1,No. 471A68,471A68,1
• Citation: 150 Ind.App. 327,276 N.E.2d 567
• Parties: Theonella WROBLEWSKI, Administratrix of the Estate of Alex Wroblewski, Deceased, Appellant, (Plaintiff Below), v. GRAND TRUNK WESTERN RAILWAY COMPANY, Board of Commissioners of the County of St. Joseph, Appellees, (Defendants Below)
• Court: Indiana Appellate Court

Page 567

276 N.E.2d 567

150 Ind.App. 327

Theonella WROBLEWSKI, Administratrix of the Estate of Alex Wroblewski, Deceased, Appellant, (Plaintiff Below), v. GRAND TRUNK WESTERN RAILWAY COMPANY, Board of Commissioners of the County of St. Joseph, Appellees, (Defendants Below).

No. 471A68.

Appellate Court of Indiana, Division No. 1.

Dec. 21, 1971.

Rehearing Denied Jan. 28, 1972.

Roland Obenchain, South Bend, for appellant.

Robert J. DuComb, Sr., Robert J. DuComb, Jr., South Bend, for Bd. of Com'rs of County of St. Joseph.

Shepard Crumpacker, Bruce J. BonDurant, South Bend, for Grand Trunk Western Railway Co.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal from a wrongful death action brought by Theonella Wroblewski (Mrs. Wroblewski), wife of Alex 'Peanuts' Wroblewski (the Deceased), arising out of the railroad-crossing-death of her husband. The trial court entered a directed verdict in favor of defendants-appellees, Grand Trunk Western Railway Company (the Railway) and the Board of Commissioners of the County of St. Joseph (County Commissioners).

On September 2, 1968--a clear, sunny day--the Deceased attended a political picnic near South Bend, Indiana, where beer was served.

Prior to 4:00 P.M., he left the picnic and proceeded north along Peach Road alone in his '68 Lincoln automobile. (Peach Road is located in a rural area and runs in a north-south direction.) He stopped to talk to some friends in another automobile who testified that he did not seem inebriated. After ending the conversation, the deceased continued north of Peach Road.

At approximately 4:00 P.M., he neared an intersection with the Railway's railroad tracks which is about 2 1/2 miles west of the City of South Bend, Indiana. (The tracks lie in an east-west direction and are slightly elevated above Peach Road.) As he did so a train operated by the Railway was approaching from the east traveling 79 miles per hour. The Deceased's car struck the train twenty feet from its extreme front end--he died instantly. Evidence showed that the deceased's car skidded 88 feet before colliding with the train. As it approaches the railroad tracks Peach Road is straight and uncontoured.

Mrs. Wroblewski's action against the Railway, among other things, alleged negligence for failing to construct and maintain a proper warning sign and for allowing brush, weeds, under growth, foliage and trees to grow unabated on and around its right of way, thereby obstructing the view of the tracks from Peach Road. Substantially the same allegation of negligence for allowing brush, weeds, undergrowth, etc., to grow up unabated along the Peach Road right of way, thereby obstructing the view of the tracks, was made against the Commissioners. She did not allege, nor was the case tried on the theory, that the grade crossing was an extra hazardous one.

The investigating officer later at the scene of the accident testified as to various physical facts. At the grade crossing there was a nonmechanical cross-arm warning sign with the words, 'Danger,' 'Railroad,' and 'Crossing' appearing thereon, sometimes referred to as a cross-buck sign (herein referred to as Highway Crossing Sign). There was no flasher, bell, or mechanical moving arm. He found no uniform danger disc sign (herein referred to as Danger Sign) indicating the presence of a railroad at any point on Peach Road south of the railroad tracks. His inspection of Peach Road south of the tracks covered three to five hundred feet and revealed that at one point there was a slight obstruction and while walking toward the tracks there is one point where the tracks went out of vision.

Nineteen photographs were introduced into evidence showing the railroad crossing from various views including Peach Road south of the crossing which exhibit the possibility of undergrowth and a tree obscuring the view of the tracks as the Railway's train approached Peach Road from the east at 79 miles per hour. Some of these photographs indicate the presence of undergrowth and brush along and near the Railway right of way as it approaches the crossing. There was no evidence presented as to the exact location of these possible obstructions as to whether located within the Peach Road right of way, the Railway right of way, or adjacent farm land, other than as exhibited in the photographs.

The Railway admitted that no Danger Sign was present 300 feet south of the grade crossing.

After Mrs. Wroblewski presented her evidence, the lower court granted the Motion for a Directed Verdict of the Railway and the County Commissioners.

ISSUES--One. Was there any evidence of negligence on the part of the Railway, or a reasonable inference thereof, which could have been the basis for submitting the case to a jury?

Two. Was there any evidence of negligence on the part of the County Commissioners, or a reasonable inference thereof, which could have been the basis for submitting the case to a jury?

Mrs. Wroblewski contends that the evidence was sufficient for the jury to draw a reasonable inference of negligence on the part of both the Railway and the County Commissioners for their failure to install and maintain a Danger Sign 300 feet south of the railroad crossing pursuant to Ind.Ann.Stat. § 55--2001 et seq., I.C.1971, 8--6--6--1 et seq. (Burns 1951). She also alleges that both were negligent in allowing vegetation and undergrowth to obscure the view of the tracks from Peach Road. Finally, Mrs. Wroblewski alleges that the Railway was negligent in operating its train at 79 miles per hour under the conditions then existing and for failure to keep a proper lookout and sound its whistle.

The Railway's position is that the mere fact that the warning sign was not present on the day of the accident does not mean that it was never installed during the 47 years preceding September 2, 1968. The Railway admits its duty to install the Danger Sign but denies any duty to maintain, repair, or replace such signs claiming the County Commissioners must repair them and the Public Service Commission must order and deliver replacement Danger Signs wherever necessary. Further, it argues that Mrs. Wroblewski had the burden of proving the Danger Sign was never installed by the Railway which she failed to do.

The County Commissioners contend that before the duty to repair is created, the Danger Sign must be installed by the Railway. If it must be replaced, the Public Service Commission must do so. Since there was no evidence that the sign was ever installed, no duty to repair was proven. Even if there was a duty to repair, that duty does not include the duty to replace.

DECISION--One. It is our opinion that there was a reasonable inference of negligence on the part of the Railway to be drawn from the evidence. Consequently, the case against the Railway should not have been taken from the jury.

There is considerable Indiana authority dealing with the question of the quantum of evidence necessary for a plaintiff to avoid a directed verdict at the close of his evidence. We need only say here that a trial court should not direct a verdict against a plaintiff at the close of his evidence if the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on conflicting evidence. See Hendrix v. Harbelis (1967), 248 Ind. 619, 230 N.E.2d 315; Whitaker v. Borntrager (1954), 233 Ind. 678, 122 N.E.2d 734; Hollowell v. Greenfield (1966), 142 Ind.App. 344, 216 N.E.2d 537.

In order to determine if there was evidence or a reasonable inference therefrom about which the minds of reasonable men might differ, establishing negligence on the part of the Railway, we must first search for a statutory duty by the Railway to install and maintain Danger Signs. The warp and woof of such a duty, if it exists, is the legislative plan relating to railroad crossings. Our examination of the pertinent statutes reveals the legislature has protected the traveling public by defining the duties and responsibilities of railroads and government agencies in an effort to make railroad grade crossings as safe as possible.

Relevant sections are:

55--2001 (13124), I.C.1971, 8--6--6--1. 'Warning signs required. ^* --From and after January 1, 1914, it shall be unlawful for any person, firm or corporation, or the lessee or receiver of any person, firm or corporation, who shall own or operate any line of steam or interurban railroad in this state to run trains on the same without installing and maintaining, at each grade crossing of its railroad with any public highway, highway crossing signs; to be placed at right angles with the highway, where possible, and the construction of the same and warning notice to be as follows: A substantial upright post, thirteen (13) feet or more in length, three and one-half (3 1/2) feet of which shall be in the ground; a board of wood or metal to be placed not closer to the ground than seven (7) feet on this post, at right angles with the post, on which shall appear the word 'Danger' in red or black letters; two (2) other boards to be placed diagonally across each other just above the board on which the word 'Danger' is printed, and on one of the two (2) boards the word 'Railroad' shall appear, and on the other the word 'Crossing.' Where two (2) railroads are crossed by the highway, parallel with each other, and not further than one hundred (100) feet distant from each other, a board shall be placed at the top of the diagonal boards on which shall appear the word 'Two'; the boards on which the word 'Danger' is written shall be at least four (4) feet in length; the boards on which the words 'Railroad Crossing' is (are) written shall not be less than five (5) feet in length, and where there are two (2) railroads to be crossed, the board with the word 'Two' on it shall not be less than two (2) feet in length; the size of all letters on the signs shall not be less than six (6) inches high: Provided, That the ...