127 Ind. 142 | Ind. | 1891
This was an action by the appellee, as administrator of the estate of Andrew Bolander, deceased, against the appellant, to recover damages for an injury resulting in the death of the said Bolander.
The second paragraph of the complaint, upon which the cause was tried, alleges, substantially, that, on August 9th, 1887, the appellant was, and still is, running and operating a railroad running through the town of Garrett, in this State; that during all of said time there extended through the central part of said town and public street, running north and south, which street was intersected by the right of way of the defendant and its tracks, and which right of way and tracks ran east and west through the central portion of said town, and all of which were within the corporate limits of said town ; that on said day the decedent was driving north along said street with a span of horses and wagon thereto attached, and while he was thus driving along said street and onto and upon said crossing, and was attempting to drive and pass over said crossing, he was, without any fault on his part, run against and over by an engine and car of the defendant thereto attached, solely through and by the negligence of the defendant; that the defendant, by its servants, who were then operating said engine and car as aforesaid, negligently failed and omitted to give any warning or signal of the approach of said engine and car towards the crossing, by the sounding of a whistle or the ringing of a bell, or by any watch
To this complaint the appellant filed an answer consisting of the general denial.
Under the repeated rulings of this court to the effect that we will not undertake to weigh the evidence in a cause, every material fact necessary to make out the appellee’s case which the evidence tends to establish must be taken as true, as it was so found by the jury. Under this rule the material facts in the case are, substantially, as follows:
The injury for which this suit was prosecuted occurred in the town of Garrett on the 1st day of August, 1887. At the point where it occurred the appellant has six railroad tracks running east and west parallel with each other. The most southern rail and the most northern rail of said tracks are’'about sixty-five feet apart. Randolph street, in the town of Garrett, which is eighty feet wide, runs north and south and crosses the six tracks of the appellant at the point where the injury, occurred. Quincy street runs east and west at a distance of about three hundred and twenty feet south of the point where Randolph street crosses the appellant’s tracks. Both sides of Randolph street, south of Quincy, are occupied with business buildings for a distance of two or three blocks south of Quincy street; and by reason of that fact the view of a person travelling north on Randolph is shut off both from the east and west. Near the west side of Randolph street a large round-house and machine shops and other large buildings are situated. A board fence, six or seven feet high, completely enclosed the grounds belonging to the appellant north of Quincy street, west of Randolph street and of defendant’s tracks, except a small space near the west end of the fence. The fence approaches within fifteen feet of the most southerly of the appellant’s tracks. At the time of the injury the third and fourth tracks from the south were occupied with long trains of freight cars, which were standing still, and were cut into
On the morning of the 1st day of August, 1887, about 8 o’clock, the deceased approached the crossing from the south on Randolph street, in a milk wagon, with the curtains rolled up on either side so as not to obstruct his view or hearing. He was a man of good hearing and average sight. While he was driving north on Randolph street towards the crossing, at a point one hundred feet south, he drove his team at a walk, the team continuing to Avalk until it entered upon the first or second track from the south. The team Avas kind, gentle and Avell-broken, and was under his control. Just before entering upon the tracks at the crossing, and as he entered thereon, he looked both east and west along the tracks to see and listened to ascertain Avhether he could hear any trains approaching, and did not either see or hear any train or engine in motion. There was no sound of bell or Avhistle, or any other noise indicating the approach' of an engine or train. A dray was driven across the tracks from
There is no question made in the case as to the negligence of those in charge of the engine which struck and caused the death of Bolander.
In approaching the crossing without ringing the bell, as required by the statute upon the subject, they were guilty of such negligence as rendered the company liable for the injury of which complaint is made, provided it occurred without the fault or negligence of the deceased. Pittsburgh, etc., R. W. Co. v. Martin, 82 Ind. 476 ; Chicago, etc., R. R. Co. v. Boggs, 101 Ind. 522; Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31.
The only remaining inquiry arising upon these facts, therefore, relates to the question as to whether they show such
As illustrating the rule that where but one inference can be drawn from the undisputed facts, and where the inferences to be drawn can lead to but one result, the question of negligence is one of law, are the cases which hold that a party approaching a railroad crossing under given circumstances can not recover for injuries unless he looks and listens for approaching trains. Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31; Cincinnati, etc., R. W. Co. v. Howard, 124 Ind. 280; Lahe Shore, etc., R. W. Co. v. Frantz, 127 Pa. St. 297; Aiken v. Pennsylvania R. R. Co., 130 Pa. St. 380.
In this class of cases the court adjudges, as a matter of law, that the party injured has been guilty of such contributory negligence as precludes a recovery. Another large
Between these two classes, one holding that the court will adjudge negligence from a given state of facts, and the other holding that the court will adjudge that there was no negligence from another and different given state of facts, is another class, which consists of a state of facts from which different conclusions may be drawn, and from which different deductions and results may be had.
This class of cases belongs to the jury, under proper instructions from the court, and the court will not undertake to say, as a matter of law, that any given state of facts belonging to this class constitutes negligence. The cases illustrating the rule applicable to this class of facts are numerous. One of the cases upon this subject is Railroad Co. v. Stout, 17 Wallace, 657. In that case Justice Hunt, who delivered the opinion of the court, in speaking of the rule last above mentioned, said : “ Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed ; another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven and draw a unanimous con
In the case of Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261, the language above quoted is set out and approved by this court. As further illustrating this latter rule see Nordyhe & Harmon Co. v. Van Sant, 99 Ind. 188; Pinnell v. Stringer, 59 Ind. 555; Ruff v. Ruff, 85 Ind. 431; Bethell v. Bethell, 92 Ind. 318; Lake Shore, etc., R. W. Co. v. Foster, 104 Ind. 293; North British, etc., Co. v. Crutchfield, 108 Ind. 518; Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250; Wabash, etc., R. W. Co. v. Locke, 112 Ind. 404; Gaynor v. Old Colony, etc., R. W. Co., 100 Mass. 208; Vinton v. Schwab, 32 Vt. 612; Chicago, etc., R. R. Co. v. Boggs, supra; Salter v. Utica R. R. Co., 88 N. Y. 43; French v. Taunton Branch R. R. Co., 116 Mass. 537; Bonnell v. Delaware, etc., R. R. Co., 39 N. J. 189; Kelley v. St. Paid, etc., R. W. Co., 29 Minn. 1; Louisville, etc., R. R. Co. v. Crunk, 119 Ind. 542.
The case now before Us belongs to the intermediate class above named. We are asked to adjudge, as a matter of law under the facts above set forth, that the deceased was guilty of such negligence on his part as precludes the administrator in this case from recovering against the appellant for the injury which resulted in his death. This we can not do. The question as to whether he was or was not guilty of negligence under the facts and circumstances above detailed was, in our opinion, a question for the jury under proper instruction from the court.
We have carefully examined the instructions given by the court and find no error therein. They stated the law of the case to the jury correctly. Of the instructions asked and refused those which state the law correctly are, we think, embraced in those given by the court.
Some complaint is made as to the action of the court in
After a careful examination of all the questions presented by the record we have found no error therein for which' the judgment should be reversed.
Judgment affirmed.