65 Ind. App. 158 | Ind. Ct. App. | 1916
On January 22, 1913, at about 6:30 p. m., Joseph Hunter, while attempting to walk across the tracks of appellant’s railroad at an intersection of such tracks with a public street in the town of Leiter’s Ford, in Fulton county, Indiana, was run over and killed by one of appellant’s freight trains. His widow,
The complaint was in one paragraph, and was challenged below by a demurrer with proper memorandum filed therewith. This demurrer was overruled and exceptions properly saved. A motion for new trial filed by appellant was also overruled and exceptions saved. These rulings of the trial court are here assigned as error and relied on for reversal.
The complaint was challenged on the ground: (1) That it did not charge appellant with any negligence; (2) that it discloses by a fair inference that decedent was guilty of negligence contributing to his injury.
Inasmuch as the question which the appellant attempts to present by these grounds of its attack on the complaint lie at the bottom of most of the reasons urged in support of its contention that the court erred in overruling its motion for a new trial, we shall at this point indicate enough of the averments of the complaint to make clear such question, and shall then address ourselves to its disposition, instead of attempting to discuss and dispose of the various alleged erroneous rulings by which such question is attempted to be presented.
The complaint charges in effect that the public street in the town of Leiter’s Ford which is here involved is about fifty feet wide and runs north and south; that three of appellant’s tracks cross it at an angle of sixty
Appellant’s theory of the complaint and its objections thereto, stated in its own language, is as follows: “It is the theory of this complaint that the two acts of negligence of the appellant, to wit: (1) the blocking of the crossing by the train on the middle track, and, (2) the backing of the train on the- south track down upon the crossing and down upon deceased without a light upon its approaching end, and without giving signals of its approach, concurred in causing the death of decedent; that is, if the middle track had not been blocked and thereby delayed him he could have passed over the south track in safety, and if no train had been run over the south track he could have gone over it and around the rear end of the train on the middle track without receiving the injury which killed him. The two acts are essentially combined in producing the result complained of. It is appellee’s theory, as outlined in her complaint, that when deceased found the crossing blocked by the train on the middle track, he had a right to leave the highway and go upon appellant’s premises in order to pass around the rear end of the blocking train, and that appellant owed him the duty to care for his safety while he was so doing. We insist that the theory is unsound. We contend that if , the deceased left the highway and went upon appellant’s premises for the purpose of going around the blocking train, he at once became a trespasser to whom appellant owed no duty, except that it should not wantonly and wilfully run him down. But if it be said that this question does not arise upon the 'complaint, since it avers that the collision was at the crossing,
Appellant, by its italicized words, supra, concedes away its contention that the complaint shows that decedent was a trespasser when injured. In any event, the theory of the complaint indicated by all of its averments is that decedent was a traveler on the street in question attempting to cross appellant’s tracks when injured, and that the appellant owed to him the duties which it owed to all travelers over its public crossings, and that it negligently violated such duties by the acts of omission and commission therein set out. Upon this theory the averments are sufficient, under the authorities hereinafter cited.
The court in several of its instructions repeated to the jury that the appellee could not recover if the jury found that the decedent had been guilty of negligence contributing to his injury, and in instruction No. 15 told the jury that “in determining where the preponderance of the evidence is on any fact or issue in dispute, you will look to all the evidence in the case bearing on that fact or issue, under the rules of weighing and considering the same heretofore given you, without regard to which side offered the same ” (Our italics.)
By instruction No. 6, the jury was told that the statutes of the state imposed upon railroad companies operating therein the following duties in reference to obstructing a highway crossing with freight trains or cars, to wit: (Here follows a copy of §2671 Burns 1914, Acts 1905 p. 747.)
Instruction No. 7 is as follows: “If you find from a preponderance of the evidence that the defendant com
Instruction No. 8 told the jury that the statute of the state imposes upon such companies the following duties in reference to sounding the whistle and ringing the bell for highway crossing, to wit: (Here follows a copy of §5431 Burns 1914, §4020 R. S. 1881.)
That part of instructions Nos. 9, 11 and 12 necessary to an understanding of the objections made to each respectively, as hereinafter indicated, are as follows:
“9. * * * And if you find that said decedent approached said crossing upon said highway and went upon the same and upon the track of said defendant, and while in such position upon said highway and crossing, a train approached from the west, not having given any of the signals required by law, whereby and by reason of such failure to give such signals he was overtaken and run upon and over and killed, then the defendant would be liable if the other material averments of the complaint have been proven by a preponderance of the evidence, and the decedent was without fault on his part, but the burden of proving that the decedent*168 did not use ordinary care and caution in approaching and crossing said railroad or said highway, if he did so approach and cross it, is upon the defendant.”
“11. But if you find from a preponderance of the evidence that on the night of January 22, 1913, at about the hour of 6:30 p.m. the defendant company pulled a freight train upon and over the crossing in question and into the siding of the first sidetrack south of the main track of the railroad of the defendant company in the village of Leiter’s Ford, Indiana, and thereafter unnecessarily and negligently permitted the same to stand over and upon said crossing at the time in question, and that at such time the defendant company negligently failed to cut said train at said- crossing, or to leave for the traveling public any space whatever between the cars of said train at said crossing; that said train extended from said crossing westward about twenty-five or thirty rods to the engine of the same, and the east end of said train extended east from said crossing about fifty to seventy-five feet from the center of said crossing; that at the said time the decedent herein, Joseph Hunter, approached on foot from the south on said highway toward said crossing with the intention of passing over the same; and thereupon said freight train was obstructing said crossing as aforesaid, and said decedent on his approach and attempt to pass said crossing was prevented thereby from passing over said crossing; and thereupon said decedent started to pass around the east end of said freight train by going eastward along and about said freight train upon the right of way of this defendant intending to return to said highway, and using reasonable care and caution in so doing, the said decedent would not thereby as a matter of law become a trespasser, and if while doing so he was killed by reason of the negligence of the defendant in operating and managing another train over said*169 crossing in manner and form alleged in the complaint, and without fault or negligence on the part of said decedent, then the defendant company would be liable therefor, provided the other material allegations of the complaint are proven.”
“12. * * * If you find from a preponderance of the evidence that the defendant, through its servants in charge of the train in question, backed the engine and train or part of the train, over said crossing in the night time and while it was dark, at a rapid and dangerous rate of speed, that the same was a much used crossing at said time of night, that said defendant had no light on the end of said train approaching said crossing, and gave no signals or warnings of any character of the approach of said train, and so backed said train upon and over said crossing and said decedent Hunter, and thereby killed him as alleged in the complaint, then said defendant would be guilty of negligence in operating said train, and if you further find that said negligence was the cause of said injury and death of said 'Hunter, said defendant would be liable therefor, provided the other material allegations are established and provided said Hunter was not guilty of negligence which contributed to his death.” (Our italics.) The giving of each of these instructions is urged as error.
If an obstruction on the highway, for which the adjacent owner is in no way responsible, will authorize the use of his land adjacent to the highway by the traveler as a means of getting by the obstruction, it would seem that there should be no reason why one who, under the law, Is guilty of purposely and intentionally obstructing a highway in violation of a positive statute should be permitted to treat as a trespasser another who, in the use of such highway, is compelled by such obstruction to pass over such adjacent owner’s premises.
In addition to said fundamental principle, which is in appellee’s favor, he also has express authority in other jurisdictions which support his contention. The Supreme Court of New York,. Appellate Division, in a case where the facts involved were very similar to those here involved, held in effect that the traveler injured on the railroad company’s right of way, adjacent to the street crossing, was not a trespasser, and that the railroad company owed to such injured traveler the duties which it owed to other travelers using the crossing in the usual and ordinary way. Kurt v. Lake Shore, etc., R. Co. (1908), 127 App. Div. 838, 111 N. Y. Supp. 859. This case was affirmed by the Court of Appeals in 194 N. Y. 583, 88 N. E. 1122. See, also, Crowley v. Pennsylvania R. Co. (1911), 231 Pa. 286, 80 Atl. 75; Savannah, etc., R. Co. v. Hatcher (1902),
We therefore hold that, as affecting the question under consideration, instructions Nos. 7, 9, 11 and 12, given by the trial court, were in accord with both reason and authority; and hence furnish appellant no ground for reversal. In this connection the court also gave instruction No. 10, which is as follows: “10. The statute just quoted you about sounding the whistle and ringing the bell on a locomotive engine while approaching a highway crossing is made for the protection of travelers on public highways in approaching a railroad, and does not apply when a person is upon the right of way of a railroad as a tresspasser in any way. If you find that said decedent was not at the time of his said injury upon said highway, but was on the right of way of said defendant walking thereon, and without intention or purpose of returning to said highway, then so far as this case is concerned he would be a trespasser, and there would be no recovery.” This instruction presented appellant’s theory of the case as favorably to it as the authorities supra would warrant.
Assuming, without so holding, that there was evidence to which the instruction was applicable, it was properly refused because it invaded the province of the jury, in that it told the jury, as a matter of law, that the taking of the dangerous route was negligence, when such question was one of fact for the jury to be determined from all the circumstances of the case. Jenney Electric Mfg. Co. v. Flannery (1912), 53 Ind. App. 397, 98 N. E. 424, and cases there cited.
This is in effect a presentation in another form of the question already considered and determined. While there may be a technical variance between the averments of the complaint and the proof in the respect suggested, it is not of a material character under the authorities cited above. The theory of .the complaint is that decedent was in the street on the crossing when injured, in the sense that appellant owed to him the care which it owed to travelers generally on its crossing, and that its failure to exercise such care resulted in decedent’s death. Under the authorities before cited, this theory of the complaint was sustained by the evidence.
No reversible error appearing in the record, the judgment should be, and is, affirmed.