33 Ind. 335 | Ind. | 1870
This was a complaint, in two paragraphs, against the appellant, charging in the first, that said corporation carelessly and negligently ran its locomotive and cars over one William M. Hunter, whereby he was instantly
The answer was in denial. Trial by jury, and finding for the appellee, for thirty-five hundred dollars; and with the general verdict certain interrogatories were submitted and answered, as follows: On behalf of the appellee it was. asked,
“ 1. "Was not William II. Hunter killed on the afternoon-, of August 30th, 1867, by being run against by a locomotive- and train of cars of defendant, at the point where the-county road, leading north and south, crosses the track of' the defendant’s railroad at Minnowa Station, and while he,. said Hunter, was crossing said railroad track along said, county road with a wagon and team of horses which he was. driving at the time ?” Ans. “Yes.”
“2. Did defendant’s agents, running and having charge; of said train of cars, give any signal of the approach of said, train to said crossing of said county road?” Ans. “No.”'
“3. Was not said train running at a great speed when* it. approached the point where said county road crosses the railroad track of the defendant?” Ans. “ Yes.”
“5. Was not the rate of speed at which said locomotive and train were running, at the time it was approaching said crossing, from forty to sixty miles an hour ?. If not, what, was the rate of speed? Ans. “No.. Erom-. thirty to.forty miles an hour.”
*338 “6. "Was the rate of speed at which said locomotive and train were being run when approaching said crossing slackened before reaching the crossing?” Ans. “No.”
“7. "Was the bell or whistle of the engine of said train rung or blown before said Hunter was struck by the said train?” Ans. “No.”
“8. Did not the sound of the whistle and that of the ■crash of the collision of the train and wagon in which said Hunter was occur at the same time ? ” Ans. “Yes.”
“9. "Was not said county road, crossing said railroad ‘track of the defendant, much used for travel?” Ans. “Yes.”
“3.1. Did not the death of "William H. Hunter result 'from ‘the 'Unreasonable rate of speed with which said train of cars approached the crossing of the county road and the ‘railroad track over which he was passing, and from the failure of the engineer of the train to keep the proper lookout 'ahead of the train, and his failure to seasonably give notice of -the .approach of the train to the crossing, by the ■signal'of'blowing'tbo whistle and ringing the bell?” Ans. ■“Yes."”
And the jury returnedthe following answers to the interrogatories propounded 'by-the court at-the instance of the -appellant-:
“ 1. Did not "William Hunter know, when he left Lanes-'ville, on the 30th of August, 1867, that the train of cars •would be due at that place in a few minutes ? ” Ans. “Yes.”
“ 2. Could not the 'noise of the approaching train be distinctly heard on the road leading from the gravel road to Minnowa crossing?” Ans. ‘“Yes!”
“3. Could not the approaching train have been plainly seen by a person on the highway at-a point thirty feet south of the railroad track?”. Ans. “Yes.”
-“•4. "Was not Hunter in the full possession of the senses ■of ‘sight.andhearing?” Ans. -“Yes."”
“ 5. Did not Hunter, after ho was notified of the approach of the train by Freeman, .and when he knew the train was*339 due, and when he could have both seen and heard the train, take the risk of crossing in front of the train?” Ans. “No.”
“6. Was the train going, before the collision, at a more rapid rate than thirty miles an hour, or forty-four feet per second?” Ans. “Yes.”
“ 7. When Hunter was thirty feet from the middle of the railroad track, was the locomotive further than three hundred and fifty-two feet from the same point?” Ans. “Yes.”
“ 8. Was it possible, in the exercise of ordinary prudence, to stop the train when going at the rate of thirty miles a'n hour, in the distance of three hundred and fifty-two feet?” Ans. “No.”
“9. Was not Hunter’s death caused in part bj his own negligence and imprudence in attempting to cross the track in front of the approaching train?” Ans. “No.”
And thereupon the appellant moved the court to render judgment for the defendant upon the special findings of the jury and their answers to the interrogatories propounded to them, notwithstanding the general verdict, because ■said answers and findings show,
1. That Hunter’s negligence contributed to the injury that caused his death, and that he did not exercise ordinary diligence in crossing the railroad before and in full view and hearing of an approaching train, when he knew the train was approaching.
2. And the defendant was not guilty of such gross negligence as showed a willingness to inflict the injury or a disregard of consequences.
This motion was overruled by the court, and this action is assigned for error.
In case where the special findings of a jury are successfully used to control their general verdict, it is required that all the facts to authorize an adverse conclusion should appear by such special answers. Thus, although it appears that Hunter had notice of the nearness' of the time when 'the train would be due when he was at Lanesville; that the noise-of‘-the approaching 'cars -could be distinctly hoard on
The proof, however, supplies all these omissions.
By agreement of parties, a map, of which the following is a copy, was put in evidence as a correct representation of the place of the collision:
About one mile north-east from Lanesville, in Marion county, at a point called Minnowa Crossing, a county road running, norths and. south; on the section line, crosses the
¥m. Records, one of appellee’s witnesses, testified, that a man driving a team fifty yards south of and towards the railroad could see the approaching train for a quarter of a mile.
To a person approaching the railroad on the county road, when within thirty feet of the railroad, the approaching train was plainly visible, without obstruction, for a mile. Upon this point there was no conflicting evidence.
The road from Lanesville to Minnowa Crossing, as shown on the accompanying map, is not further than a quarter of a mile from the railroad; and the cars can be ■easily and plainly seen and heard by persons traveling on said road.
According to the evidence of the conductor, the engineer,-and the fireman on the train, and one of the appellee’s witnesses, the train approached the crossing at about ¡the rate of twenty-five miles an hour; by other witnesses it was placed beyond this speed; by the finding of the jury, at from thirty to forty miles an houp.
Witnesses, some at the time at a distance of more than a -mile from the collision, heard the noise of the approaching train some minutes before the collision.
Andrew Ward, the first witness introduced by appellee, who was driving a wagon a quarter of a mile from the crossing, heard the cars coming very plainly three or four min-sites -before the -collision. See 1 on map.
Hattie Stiers, a sister, also introduced by appellee, while eating supper on the north porch of the same house, heard the train coming “a few moments” before the collision. See 2 on map.
Jane Stiers heard the coming train before the collision,, and spoke of the fact that it was coming fast, while eating-supper on the same north porch. See 2 on map.
Zaccheus White, a witness introduced by appellee, was traveling from his house to Lanesville, on a road parallel with the one on which Hunter was traveling, about a mile-west of' the crossing, and “heard the train sometime before it whistled. I heard it before I left my house'.” See 3 on map.
Elijah D. Wilmington, who was. at Mr. Smart’s, where Hunter lived, “a quarter or a half a mile” from the Grossing, and was engaged at the time pulling roasting ears in the field, heard the cars coming before the collision.
Joseph Landis, merchant, and express agent at Lanesville, distinctly heard, at the distance of a mile, the noise of the-coming train a minute or a half a minute before the collision. See 4 on map.
I. N. Reddick,, unloading gravel on the same road that Hunter traveled, half a mile from the crossing, heard the noise of the approaching-train before-the collision. See 5 on map.
William H. Hunter was twenty-two. or- twenty-three years of age, and in the full possession- of the senses of sight and hearing. His mother’s residence, where he had long lived, was close by the railroad station at Lanesville. He had been employed as a brakesman on the road a few months before the collision. At the time of the collision, ho was living with Mr.. Smart, three-quarters of a. mile. from.
N. B. Freeman testifies, “He was there five or ten minutes before the tram was due. "We were talking something about the train. I had the mail already made up. It was the mail train. "We were waiting for this train. The mail bag was lying on the counter. Hunterwas standing by the counter getting his tobacco. There was something said about the train, but I could not tell what it was now. I was looking for the train, and something passed about its being perhaps'five or eight minutes till train time. I know we were talking about the train being due or about due. I went to the door once, I know, to look for the train, while he was in the store. He bought some smoking tobacco, lit his pipe, and went out of the store to his wagon. He had a wood wagon, I think, and two horses. He drove up towards the pike, the road that leads to the crossing, about as fast as his horses could go in a trot, a fast trot. He did not go out of a trot, but seemed to be in a hurry.”
On cross examination, he was asked:
Q. “Did you notice the train as it came to the crossing at Minnowa?”
A. “I heard the train before it got there.”
Q. “Did you hear the crash?”
A. “Yes, and three distinct blasts of the whistle.”
J. N..Reddick testified, “ On the 30th day of August, 1867, I was drawing gravel on the gravel road that runs through*344 Lanesville. I met Mr, Hunter a little more than a quarter ■of a mile from the crossing, on the gravel road. It is about ;a 'quarter of a mile from Minnowa Crossing to where the county road 'intersects the -gravel road. I met Hunter about ■one hundred and fifty yards from the intersection. I spoke •“good evening” to him, and he to me, ITe was sitting on the right side rail of the wagon — it was a wood bed — with his arm around one of the stakes. He was smoking his pipe. He had his back to the east, and the lines in his left hand. Ho was driving not very fast, in a moderate trot. I came on west toward Lanesville. I heard the train come •along when I stopped to unload gravel, about a quarter of a mile from where the county road intersects the gravel road, I suppose about a half a mile from Minnowa Crossing. I heard the train approaching there. I heal’d the collision at that time. I do not know that I can tell you how long I heard the noise of the approaching train before the •collision; it was a few minutes. Loading and unloading gravel makes a good deal of.fuss. I heard the noise of the train coming. The wind was blowing from the north. There was a pretty cool air moving. I turned myself around to sec what had happened, but could not see what was the matter. They whistled several times, to put down the brakes, I suppose. I drove back to the crossing and saw a good many men, none of them neighbors. I met the conductor fifty steps south of the railroad, coming to see if I could recognize the man.”
Charles Andrew Crane testified, “ I was fireman. At the time, I was on the running-board on the left hand of the engine, wiping the engine off. We were about on time, and traveling at about twenty-five miles an hour, about our usual rate of speed. My back was toward the way he was coming, and the first I noticed of him • or the wagon was when the whistle blew. The moment I turned and looked that way, I saw the man and the fragments of the wagon going off to the left hand side of the engine, the south side of the railroad track. The horses ran off" down the
Peter Crane testified, “I was engineer on the train. My son, Charles Crane, was fireman. Frederick Crane,- my son, then in his twelfth year, was also.along with me. Tie rang the bell most of the way from Union City to Indianapolis. At the time, I was sitting on the right hand side of the engine, looking through the window or door’, I don’t know which. I know I was looking out ahead. I presume the door was open, as it was warm weather. There was a glass in the widow. I could see both sides of the track thirty feet ahead of the train.”
Q. “Then if you had been looking out ahead at this time, could you not have seen any thing that came upon the track on either side of the road?”
A. “Not any way close to the engiue. You would not see the opposite side much nearer than that. When I was very near the crossing, some twenty or thirty rods from it, I motioned to my little boy, who was sitting on the left hand side of the cab, to ring the bell, and I suppose he did it. I probably passed a little beyond the point where I usually rang the bell, or where it was usually rung, before he rang the bell.' The first intimation I had of the fact that the wagon was coming, was when my little boy told me there was a team coming on the track. . 1 pulled the whistle instantly, before I saw the horses’ heads. Looking out on the north side, I saw the wagon pole and the heads of the horses cross the track just an instant before the collision. I did not see anything else connected with the collision at that time. I did not see TIunter at all, till I saw him on the platform, after he had been struck. I could not say how long it was from the time I pulled the whistle till the collision; the time was very short. The train ran six hundred feet, or such a matter, before it came to a dead halt. I judge it was stopped about as quick as it could be stopped. I reversed the engine. I do not think I got the engine en
Samuel Gochenaur, the conductor, testified that the train was on time and making the customary rate of speed, from twenty-five to thirty miles an hour.
Q. “What was the first you knew of the fact that there was anything in the way at Minnowa crossing?”
A. “A signal whistle. I was in the rear car, and when I heard the whistle I stepped on the back platform and looked ahead on the north side of the train, and saw a couple of horses going against the fence. About the time they struck the fence the rear end of the train was on the crossing. When the train stopped I got off and walked forward to the engine, and asked the engineer what was the matter. I then went around to the other side of the train, and saw the brakeman picking up the man in the ditch behind the train. They took him down to the platform, and I walked down there as quick as I could and found him nearly dead. Then I signaled the engineer to back the train, in order to get the man into the baggage car, and by that time some gentleman came along the road driving a team from the south, and I beckoned him to come up. I understand his name is Reddick. I did not see any person else that lived in that neighborhood. The train went about three times its length past the crossing before it stopped. Its length was about two hundred and twenty-five feet. A train going at the rate of twenty-five miles an hour will run three or four train lengths in being stopped.”
Error is assigned upon the admission, over the objection of the appellant, of certain evidence offered by the appellee.
Q. “Were you at Lanesville station when the train came down there?” Ans. “Yes.”
Q. “ State what you did when you got to Lanesville.”'
A. “I w as standing right by the engine when the train stopped.”
Q. “Did you see the body of Mr. Hunter when it was taken off the train ?”
A. “Yes; I helped to take charge of it.”
Q. “If you had any conversation at that time with the fireman of that train as to the rate of speed at which the train was running when it came to Minnowa Crossing, state what that conversation was.”'
The defendant objected for the reasons following*:
“We do not admit that a railroad company can be bound by any admissions or statements of any agent, unless such admissions or statements were made within the scope of his authority. The plaintiff here proposes to prove what was said by some employee of the company, not at the time of the collision, but afterwards; not at the place of the collision, but at a different place, the next station on the road. The conversation cannot be let in under the rule in regard to res gestee; that rule cannot be applied to a thing of this sort. The fact that the dead body of Hunter was on the train, still in the hands of the company, does not alter the ease. ' If that circumstance were allowed to justify the admission of these statements in this case, then upon the same principle, if the company had brought the body from New Orleans to Indianapolis, any fireman on the train could bind the company by his statements at the latter place. Furthermore, we insist that if a tort has been committed, the admission or statement of an agent, after the commission of the tort, can never be competent to bind the principal. This fireman was acting within the scope of his authority in running the engine, but not in making the statements, if he made any, which the plaintiff seeks to introduce.”
The witness then answered, “He said the train was running over forty miles an hour, between forty and sixty miles an hour, somewheres. He said he could not tell any difference at all between the signal and the collision of the engine with the wagon; that the man was sitting with liis back toward the train; and that he did not think the man saw or heard the train, or knew there was any train in reach of him. He said he never moved out of his position till he was struck. He said there was no signal at all.”
The appellant asked the court to give the following instructions, which the court refused to do, and the appellant excepted:
“ 5. The accident in this case took place at the intersection of the railroad track and a public highway, and it is the duty of a traveler approaching a railroad crossing to look along the line of the track, if possible, and see. if any train is coming; and if you find, from the evidence, that the deceased failed to take such precautions before the happening of the .accident, then he was guilty of negligence, and you will find for the defendant.
“ 6. A traveler approaching a railroad crossing on the public highway is bound .to exercise ordinary care, and vigilance, and foresight, in proportion to the danger to be avoided and the fatal consequences involved'in his neglect. His vigilance should be quickened, not slackened, by the fact that he could not see the track sideways to any distance till he got on the track. And if the decedent could not see an approaching train by reason of any obstruction to the view, then he was called to greater care and watchfulness in driving upon the ti’ack than if the view had been open. And if he heard, or in the exercise of ordinary care and watchfulness might have heard, the noise of the coming train, and then drove upon the track, without first fully ascertaining that there was no danger from, collision, he was guilty of negligence, and you will find for the defendant
“7. It is not enough to entitle the plaintiff to recover in this action, that he established the fact that the defendant neither rang the bell nor sounded the whistle. If you find these facts proved by a preponderance of testimony, then it must further appear to your satifaction that the accident was brought about by reason of this omission. And if the decedent had notice in any other way, of the approach of the train, cither from a knowledge of the train time, or by notice given that the train was coming, or by the noise of the running train, that it was approaching, and with this knowledge heedlessly and recklessly drove upon the track without first apprising himself that he could cross in perfect safety to himself and the defendant, then the plaintiff cannot recover, and you will find for the defendant.”
This instruction was given after the words “and recklessly” had been inserted by the court, over the objection of appellant.
“12. If the jury believe, from the evidence, that the collision resulted from the fault or negligence of both parties, and Hunter’s fault was upon a point which he knew, or had reason to believe, would or might contribute to the injury, then the plaintiff cannot recover.
“13. If Hunter was guilty of negligence, or did not use ordinary care to avoid the injury, the plaintiff cannot recover in this ease, unless the defendant has been guilty of such gross negligence as to imply a disregard of consequences or a willingness to inflict the injury, and from the consequences of which Hunter could not escape by reasonable diligence.”
The court gave the following instructions:
“1. This action is brought by George W. Hunter, as administrator of Vm. II. Hunter, deceased, against the Bellefontaine Railway Company, to recover damages alleged in the first paragraph of the complaint to have been sus*350 iained by reason of the defendant, by her officers, agents, employees, and servants having carelessly and negligently run the locomotive and cars of the defendant upon and over William II. Hunter, thereby causing his death, the said William H. Hunter being then and there without fault in the premises.
“ 2. In a second paragraph of the complaint it is alleged that the defendant’s agents, officers, employees, and servants recklessly, wantonly, and with gross carelessness and negligence, ran the locomotive and cars of the defendant over and upon Wm. II. Hunter, thereby causing his death, Wm. II. Hunter being then and there without fault or negligence in the premises.
“3. The defendant denies the matters set out in the complaint ; and to entitle the plaintiff to recover, the material mattérs alleged in the complaint must be sustained by a preponderance of evidence.
“4. The plaintiff cannot recover in this action unless Wm. II. Hunter could have maintained an action for injuries received by the same acts of the defendant’s agents or employees, had ho lived.
“ 5. The right of the plaintiff to recover rests upon the facts assumed in the two paragraphs of the complaint — in. the first, that the defendant, by her agents and employees, caused the death of Wm. II. Hunter by their carelessness and negligence in running the locomotive and cars of the defendant, and that there was no negligence or want of ordinary care on the part of the deceased, contributing, in any degree, to his death.
“ 6. To entitle the plaintiff to recover under the first paragraph, you must therefore find that the agents or employees of the defendant were negligent and careless in running the locomotive and cars, thereby causing the death of Hunter, and that Hunter was free from any negligence in any degree contributing to his own death.
“ 7. In the second paragraph it is charged that the defendant, by her agents and employees, caused the death of*351 Hunter, by recklessly, wantonly, and with gross carelessness and negligence running tbe locomotive or cars upon or against him, he being without fault or negligence.
“8. Under this paragraph, if you find, from the evidence, that the agents or employees of the defendant in charge of the locomotive and cars, recklessly and wantonly, and with gross carelessness and negligence, ran the same upon or against William TL Hunter, thereby causing his death, the plaintiff will be entitled to recover, though the deceased may not have used ordinary care to avoid the injury, unless his failure to use ordinary care was upon a point his own negligence of which resulted in his death.
“9. The injury causing the death of Hunter occurred at a place where a public highway crossed the railroad of the defendant, where each had a legal l’ight to pass; and the rights and duties of a railroad company in running their cars and of persons traveling on a public highway crossing the track of a railway are mutual; each has the right to pass, and each is bound to use ordinary care and diligence, in doing so, to avoid injury to the other. Travelers upon the highway and the agents or employees of a railway company may each act upon the presumption that the other in their conduct will act in accordance with the legal rights and duties of both.
“ 10. In this connection, it is perhaps well to define some of the terms which have been much used in the argument of the cause and in these instructions. By the term ‘ordinary care’ is meant that degree of care which persons of common and ordinary .prudence usually exercise in their own affairs. This degree of care must, however, vary according to the circumstances. It must be proportionate to the dangerous character of the business and of the mode and means of conducting it'; and the- degree of vigilance which the law exacts in requiring the exercise of ordinary care varies with the probable consequences of negligence, and also with the command of means to avoid injury to others possessed by the person on whom the obligation is*352 imposed. Or, as applied to both the plaintiff and defendant in this case, it is such a degree of care, skill, and diligence as men of ordinary prudence under similar circumstances; usually employ.
“11. Gross negligence is sometimes defined to be ‘the absence of slight care, or that degree of care which every man of common sense, though very absent and inattentive, applies to 1ns own affairs.’ As applied in this case, to charge the defendant by her agents and employees with having recklessly, wantonly, and with gross carelessness and negligence, caused the death of ¥m. IT. Hunter’, as set out in the second paragraph of the complaint, it must appear from the evidence that the negligence of the agents and employees of defendant was so gross as to imply a disregard of consequences or a willingness to inflict the injury.
“12. The term recklessness, as applied to management of the train, is such gross negligence as is utterly regardless of consequences.
“ 13. It was the duty of those in charge of the train of the defendant, when approaching the crossing, to give some signal, by ringing the bell, sounding the whistle, or otherwise, calculated to call the attention of an ordinarily prudent man passing on the highway to the approach of the train, unless you believe the railroad track to have been in such public view, or the noise made by the running of the cars sufficient to enable an ordinarily prudent man, exercising usual care, to have notice of the approach of the train and avoid collision. And it was their duty also to exercise care in running the train at a reasonable rate of speed, such a rate of speed as would enable a prudent man exercising ordinary care to avoid collision; and when it becomes evident that contact is liable to occur, it is their duty to use all reasonable means to avoid it. In tljis action, you must determine from the evidence what means -were proper to be used, under all the circumstances of the case, to avoid the collision.
“ 14. It was the duty of the deceased, in charge of the*353 horses and wagon, in approaching the crossing, to exercise such care as a person of ordinary prudence would, under similar circumstances, usually employ in looking out for the approach of the train and acting so as to avoid contact with it; and if you believe from the evidence that the exercise of such care would have prevented the accident, you will find for the defendant, unless you find that the collision resulted from such gross negligence and recklessnes on the part of those in charge of the train as to indicate an entire disregard of consequences or a willingness to inflict the injury.
“15. If the jury believe from the evidence that no signal was given, before approaching Minnowa Crossing, by the employees of the railroad company, and that the train was going at an extraordinary rate of speed, this did not justify Hunter in encountering the risk of crossing, if he saw or heard the approach of the engine or was otherwise satisfied of its presence in season to avoid the peril.
“16. A party who sees or hears an approaching engine, or is otherwise notified of its near approach, and chooses to take the risk of crossing before it rather than await -its passage, forfeits all claim to redress.
“17. If, under the evidence and these instructions as to the law applicable in the case, you find the plaintiff will be entitled to recover, it will be your duty to determine the amount which in your judgment the plaintiff should receive. This will be such a sum as you deem a fair and just compensation, taking into consideration the cii’cumstances sur- • rounding the deceased, his family relations, &c., the amount to be determined by the exercise of a sound discretion; but in no event can it exceed the sum of five thousand dollars.”
It is objected that the bill of exceptions does not state ' that it contains all the evidence given in the cause.
The bill of exceptions shows the impanelling of the jury and the introduction of evidence by the plaintiff’; and it states at the close of the testimony of a large number, of.
•Upon the question of the admissibility of the reported statements of the fireman who was upon the engine at the time of the accident, it seems scarcely required that authorities should be cited. Such evidence was plainly improper. The appellant has cited us to Luby v. The Hudson River R. R. Co., 17 N. Y. 131, where .the precise question is decided.
This was an action for running a ¡horse.ear over plaintiff
It is insisted that oven if erroneously admitted, still the evidence is not shown to have influenced the jury, and therefore the error may have been harmless. It is plain, however, that the rate of speed at which the train was moving did, whether properly or not, form an important element-in leading the jury to the conclusion that the death .resulted from the negligence of the appellant. The admission of "White fixes the rate at the highest stated by- any -witness, and the jury have adopted hisminimum, although.no other witness testified to even that speed. But where 'error has occurred in the admission of improper evidence, it must affirmatively appear that no .injury was caused by such error; and the action of the court below in-overruling the motion
This decision involving a reversal of th& case, wo will, without further question as to the completeness- of the bill of exceptions regarding the evidence, proceed to- examine the correctness of the instructions given, as applied to the evidence before us, therebeing no question that the-instructions are fully stated.
In The Toledo and Wabash Railway Co. v. Goddard, 25 Ind. 185, the doctrine was stated thus; “Where negligence is the issue, it must be a case of unmixed negligence, to justify a recovery j and if both parties, by their negligence, immediately contributed to produce the injury, neither can recover.” The authorities then- supporting the position Were very fully stated. Later decisions- have only confirmed the rule, which, indeed, rests upon the case of Butterfield v. Forrester, 11 East, 60, where Lord Ellenborough held, that “a party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself' use common and ordinary caution to be in the right.”
In The Lafayette and Indianapolis R. R. Co. v. Huffman, 28 Ind. 287, the negligence on the part of the plaintiff which will defeat his action is again stated and applied, even When an infant is the injured party. The court below had instructed that if the servants of the company had failed, in- the management of the train, to use such diligence and carenas prudent and discreet persons should use, &c., and
In The Indianapolis and Cincinnati R. R. Co. v. Rutherford, 29 Ind. 82, the jury found -specially, that the injury (a broken .arm) would not have happened if the plaintiff had kept his ami inside the car. Yet the jury gave the plaintiff a verdict -of seven hundred dollars against the railroad company. The latter appealed. The court say: “ This judgment cannot .stand. The place for the passenger is inside, not outside the coach. This is known to «everybody who ever saw a ¡railway-car- Nothing is better .settled than tbat in such a case, if the plaintiff’s negligence has -contributed to the injury he cannot recover.”
In Telfer, Adm’r, v. The Northern R. R. Co., 30 N. J. 188, where the action was for killing the plaintiff’s son, who was crossing «the track of .the defendant on a public road, it was said, “In crossing ordinary roads, caution and care are chiefly demanded to avoid running against or over anybody else; in «crossing railroads,It is exacted to avoid being run over yourself In the former case, the blame attaches prima fade to the party doing the Injury; in the lather, it attaches, in the first instáneé, to .the party obstructing the track.” The court say, “whether the whistle was blown or hell rung upon .the approaching engine, is .imma
If the engineer see a person on the track, to whojn the train must be in full view, and there is nothing to indicate a want of consciousness or capacity, he would not be bound to stop his train. lie would have the right to presume that the party would remove in time to avoid the danger. The Philadelphia and Beading R. R. Co. v. Spearen, 47 Penn. St. 300.
In The North Pennsylvania R. R. Co. v. Heleman, 49 Penn. St. 60, it is held to be the duty of the traveller approaching a railway crossing, to look along the line of the railroad track and see if any train is coming; and if he fail to take such precaution, it is more than evidence of negligence — it is negligence itself, and the court should so charge the jury.
This, indeed, is the true rule; for when it is determined as a legal proposition that one may not rush blindly upon, the rails over which trains arc passing propelled by an agent, serving its master almost at its own will, the neglect of this duty to use the physical senses is negligence, and not mere evidence of negligence.
In Dascomb v. The Buffalo and State Line R. R. Co., 27 Barb. 221, the facts were these: The plaintiff'lived near' and owned land on both sides of the New York Central R. R. At four o’clock, P. M., he was proceeding across the road, at what is called the Camp Road Crossing. The highway and the railway crossed nearly at right angles and at grade. The passenger train was then due. There is no evidence that those in the wagon looked for the train or took any precaution whatever. The result was that the wagon.
If a party rushes into danger, which by ordinary care and prudence he could have seen and avoided, no rule of law or justice cap be invoked to compensate him for the injury he may have so received. Chicago and Alton R. R. Co. v. Gretzner, 46 Ill. 74.
In Ernst v. Hudson River R. R. Co., 39 N. Y. 61, Judge Clerke uses this language: “Any contributory negligence of a person attempting to cross a railroad track undoubtedly excuses the railroad company, whether the required signals are, or are not, given; or whether the company is or is not guilty of any other negligence.” Judge Clerk further adds, “the rule of this court is not ignored or modified by any former opinion, that where the injured party has not used ordinary care, there can be no recovery against the company.”
A leading case on the question at issue is Wilcox, Adm’x, O v. The Rome, &c. R. R. Co., 39 N. Y., 358.
In that case, the intestate was crossing the track on Court street in the village of Watertown. The track and the trains on it were in plain sight for a distance of eighty rods. The street and the track cross each other at right angles. A special train came to the crossing at the rate of about fifteen miles an hour, without ringing the hell or sounding the whistle as it approached the Court street crossing. There was no signal man stationed at the crossing. While the deceased was on the track near the Court street crossing, and twenty-five feet inside the east line of the street, he was struck and carried forty-five feet. Tie ■died of his injuries.
The court held, that “where deceased was killed in attempting to cross the railroad track within the limits of the public highway, and at a public crossing, if it appear that the deceased would have seen the approaching cars in time to have avoided them, had he first looked before he attempted to.cross, it will be presumed he did not look; and by omitting so plain and important a duty, he will be
In the Galena and Chicago Union R. R. Co. v. Loomis, 13 Ill. 548, the court held, “that if without signals, the injured party might, with care, have seen the train and known that it was aporoaching, ho could not recover. A failure to ring the bell or sound the whistle does not raise a presumption that this was the cause of the injury.” The omission of these signals is no more, and no less negligence, than the neglect of any other duty. It is neither gross negligence, nor culpable negligence, nor any other degree of negligence. It is simply and only negligence. Chicago and Mississippi R. R. Co. v. Patchin, 16 Ill. 198; Galena and Chicago Union R. R. Co. v. Dill, 22 Ill. 264; Illinois Central R. R. Co. v. Phelps, 29 Ill. 447.
In Pennsylvania R. R. Co. v. Henderson, 43 Penn. St. 449, it is held, that the injured party is charged with knowledge, or regarded as knowing, if he had such warnings and opportunities of knowledge as would, with ordinary caution in these circumstances, have saved him from the danger. This, we think, is a correct statement of the law, and under such circumstances the party must bo held to have knowingly contributed to his own injury.
In Beisiegel v. New York Central R. R. Co., 40 N. Y. 9, it was held, that the common law does not impose the duty of warning bj signals persons crossing their track, and that if the injured party by looking up the track, in the direction of the approaching train, could have seen it in time to have avoided the injury, his omission to do so was negligence.
qIn Havens v. The Brie Bailway Co. 41 N„ Y. 296, it was ^declared, that where the statute required signals to be given by the company on approaching a railroad crossing-, and they were omitted, yet such omission did not absolve the person approaching such crossing from looking up and down the track, to see whether a train was- approaching; and his omission so to do precluded his recovery.
In Stubley v. London and N.W.R.W. Co., L. R. 1 Ex. 13, defendant’s track crossed a much traveled foot-way; on each side was a swing gate some distance from the rails; at the west gate, owing to the pier of a bridge, a person could not see a coming train for over thirty yards south, but by going within the line and within about nine feet of the track he could see three hundred yards each way. The deceased came from the west to cross, and was detained by a freight train passing south. As soon as it had passed she proceeded to cross behind the train, and just as she reached the east track was strnek' down by an express train from the south, which she had not observed.
Pollock, C. B., said, “The track is of itself-a warning of danger to those about to go upon it and cautions them to see whether a train is coming. There was no evidence to' go to the jury.”
Bramwell, B., said, “Passengers crossing the rails are bound to exercise ordinary and reasonable care for their own safety, and to look this way and that way to see if danger is to be apprehended.” —
In Butterfield v. The Western R. R. Co., 10 Allen, 532, the “plaintiff was acquainted with the highway and railroad. If he had looked he would have seen the train. It came from the west, and for a half a mile west of the highway the track was in plain sight. It was a stormy night, raining, blowing hard from the north-west, and snowing some. He had his hand up holding his hat on his head and this prevented him from seeing the train. He was listening for the ears, his attention was called to the subject, and he ex
In the case of Cliff v. The Midland Railway Co., L. R. 5 Q. B. 258, Hilary Term, 1870, Lush, J., uses this language: “I think that when the legislature authorizes a railway to cross a way, public or private, upon a level, and does not require from the company any precaution to avoid danger, the legislature intends that the persons who have to cross that line should take the risk incident to that state of things.” It was held, accordingly, where the action was for negligence in knocking the plaintiff down and injuring him at a crossing of the railway, that it was error in the judge, in summing up, to leave to the jury as evidence of negligence in the railway company, the omission to keep a gate keeper.
We think the law may be regarded as fixed, that no neglect of duty on the part of a railroad company will excuse any one approaching such a crossing from using the senses of sight and hearing, where these may be available; and injury where the use of either of such faculties would have given sufficient warning to enable the party to avoid the danger, conclusively proves negligence, and there can be no recovery; unless the railroad company has been guilty of such conduct as will imply an intent or willingness to cause the injury; and this can only be attributed where the company has notice of the particular emergency, in time, by the use of ordinary diligence, the means being at hand, to avoid the collision.
In The Indianapolis and Cincinnati R. R. Co. v. McClure, 26 Ind. 370, where the action was for killing stock, a quotation is made from Redfield on Railways, an author whose language it were well always to carefully weigh, stating that this willingness to injure “is always to be attributed to the defendant, if he might have avoided injuring the plain
In the case before us, each party had a right of passage, limited by that maxim of equity, sic utcre tuo, ut alienum non¡cedas. Upon each rested the obligation, in the exercise of this right, to use such reasonable degree of foresight, skill, capacity, and care, as would be consistent with a proper regard for the safety of all others exercising the same right and using the like precautions. We do not say that such care must be used by each as would prevent the possibility of injury to himself or another. There are inevitable accidents. But such care is required as would reasonably and under all ordinary circumstances avoid collision with one using like caution — such care as a prudent man in the exercise of his usual diligence will observe. It is true that prudent men are sometimes careless. When so, they must accept the consequences of their departure from their usual line of conduct, and the exception is not to mark the amount of care exacted by the law.
Of necessity, the special acts, the omission of which would on the one part constitute carelessness, may not be required from the other party. One approaching in a carriage, on the highway, the crossing of a railroad, over which express trains at a high rate of speed are 'frequently passing, may reasonably be required to assure himself, if he can, by the use of his organs of sight and hearing that no cars are in dangerous proximity. If the use of such means would give the information, ho may properly be charged
By statute in many states certain signals are required to be given by a train when nearing any public crossing, and therefore their neglect to comply with the law under such circumstances is negligence; but no such special act is now required in this State, and therefore its omission is not in itself negligence, unless the peculiar circumstances, the concealment of the train or the like, may render it necessary and proper.
The fifth instruction asked by the appellant should, under the evidence before us, have been given. The objection that it did not hold the appellant liable for gross negligence is of no force, for there is no -evidence of any witness from which such intent or willingness to inflict the injury could be inferred. The sixth instruction asked should also have been given without modification. It is objected that the words “ without first fully -ascertaining that there was no danger from collision” are too broad, and that the test
The seventh instruction should not have been changed by the insertion of the words “and recklessly,” there being no evidence to justify such language. It is not proper that a court should countenance a jury in an evasion of the law', by bringing all cases where the injured party has been guilty of contributing negligence within the exception. The most that can be said under the evidence, in any view, is, that no-signal was given, and that the railroad train-was running at a great rate of speed. But in The Indianapolis and Cincinnati R. R. Co. v. McClure, supra, excessive speed was held not to justify a finding of willfulness or willingness to inflict the injury.
The twelfth instruction asked informed the jury that if Hunter’s negligence contributed to his injury, and he knew or had reason to believe such fault would or might do so, ho cannot recover. If the injury “resulted from the fault or negligence of both parties,” Hunter could not recover; and his knowledge that such would be the result certainly could not change the rule. It would seem from the argument of counsel that they construe the instruction to import, that if Hunter did an act which he knew or had reason to believe would or might contribute to his injury, there can be no recovery.
The thirteenth instruction we are not prepared to sustain. A willingness’to inflict the injury would perhaps render the
The thirteenth instruction might well have been more guarded. It is not clear that the rate of speed of a train in “public view,” approaching a road crossing at a distance from a city, is‘material in enabling a prudent man to avoid collision; for if you reduce the speed, the train being in open view, the traveler attempting to pass before the cars may by an error of judgment be injured, unless the train be so far under the control of the engineer that he can absolutely stop it before reaching the crossing, a requirement which would forbid rapid transportation, in effect. A prudent man would permit a train in “public view” and very near to pass, before attempting to cross the iron path.
The fourteenth instruction assumed erroneously that there was proof of willingness to inflict the injury complained of.
The fifteenth instruction should have informed the jury that if Hunter by the exercise of ordinary care might have seen or heard the train approaching, he was not justified in encountering the risk of crossing before it.
Reversed, with costs; remanded for a new trial.