44 Ind. App. 73 | Ind. Ct. App. | 1908
Lead Opinion
This action was brought to recover damages for the death of appellee’s decedent, alleged to have been caused by the negligence of the appellant. Appellant’s demurrer to the complaint was overruled and an exception reserved. An answer of general denial was filed, a jury trial had, resulting in a general verdict in favor of appellee, assessing damages at $5,000. Answers to interrogatories submit-.
The errors assigned and urged here for reversal, are the rulings of the court below on appellant’s demurrer to the complaint, and on its motions for judgment in its favor on the interrogatories and for a new trial.
While this complaint could not be commended as a model pleading, and is certainly redundant in charges of negligence where they do not properly belong, yet we think it sufficiently avers that the act of the appellant in running its locomotive
Appellant’s motion for a new trial calls in question the sufficiency of the evidence to sustain the verdict, certain instructions given and refused, the action of the court in admitting certain evidence, and error in the assessment of damages.
The refusal of the court to give this instruction presents the same question that is presented by the reason assigned in appellant’s motion for a new trial — that the evidence is insufficient to support the verdict. There is evidence tending to show that, on account of the dense fog prevailing at the time, the decedent was unable to see the train that struck him. There is no contradiction whatever about the fact that he did not stop and listen for the approach of the train at any time after he left the hardware store, which was 250 feet from the crossing, and that, within one minute of the time of the collision, and just as he was leaving the hardware store, he heard the whistle of the engine that struck him. It is equally clear, from the uncontradieted evidence of all the witnesses who testified on the subject, that the decedent could have distinctly heard the sound made by the approaching train had he stopped and listened for it at any point within fifty feet of the track.
The evidence is uncontradieted that, at the time the accident occurred, the decedent was fifty-five years of age, of ordinarily good senses of sight and hearing; that he resided in the country a few miles east of the town of Milroy, which was a small village on appellant’s road; that on the morning of the day the accident occurred he and his son Clayton, who was nineteen years of age and in full possession of his
The evidence does disclose that there were a few trees and a switch signal, and some telegraph poles within the range of vision, but at the time the accident occurred, which was about 8:10 o’clock a. m. on January 20, 1905, it clearly ap
The evidence discloses that a dense fog obscured the decedent’s view of the approaching engine and caboose, and the theory of the appellee’s case is that, by reason of this dense fog and the intervening obstacles, the appellee’s intestate was prevented from seeing the engine and caboose that struck his vehicle, until his horse was upon the track. The evidence is clear that but for the fog the decedent could plainly have seen the engine that struck him, had he looked, in time to avoid the collision.
Decedent had completed his errand in town, and was proceeding home, going east from Maley’s store, where he had bought the stovepipe, toward the crossing, as the engine and caboose approached from the north. The whistle was sounded when the engine was north of the Main street crossing, somewhere north of Bartlett’s crossing. The evidence justified the finding that the bell upon the engine was not rung as it approached the crossing. At the time the whistle was sounded the decedent and his son were just leaving the hardware store, about two hundred thirty feet from the crossing. They heard the sound of the whistle. Clayton Matthews, the decedent’s son, testified that he heard the sound of the whistle, and knew the train was approaching, but thought he could get across before the train arrived. He did not know where the engine was when the whistle was sounded. Por aught he knew, the whistle might have been sounded at the whistling post. It apprised him and his father of the approach of the engine. He testified that the horse was driven at a slow jog of a trot from the store to a point within about thirty feet of the crossing, when the horse was slowed down to a walk, and that he walked from there until on the crossing ; that when the horse was on the crossing he saw the engine approaching a very short distance away, and that this
A great number of witnesses were examined in behalf of the appellee, to prove the rate of speed at which the train was going, that the whistle was not sounded at the whistling post, and that the bell was not being rung. All of these witnesses testified that the noise made by the train could be heard distinctly for a long distance before it reached the crossing, by one standing still. Some witnesses testified to hearing the noise made by the running of the train when they were not listening for the same, and when they were indoors engaged at their work. Others, who were out of doors and standing where there was no noise of a moving vehicle to interrupt their hearing, testified that the noise made by the running of the train could be heard from one-half mile to a mile. It is made perfectly clear that had the decedent and his son stopped their vehicle and listened for the train at any point between the store and the railroad track they could have heard distinctly the train approaching, and would have been able to judge of its dangerous proximity to the crossing before they attempted to cross the same.
The inference is inevitable, that if the decedent and his son failed to hear the approaching train it was because of the noise made by their moving horse and vehicle, and not for .any other reason. There is no evidence that any other vehicle was passing upon the street, except the buggy in which the witness Mercer was riding, and which passed appellee’s decedent on the road, and reached the depot before the accident occurred. There is no evidence that there were any distracting sounds produced except those which
Here, under the evidence, and upon the appellee’s contention, the conditions were such that the decedent could not see an approaching train, running at a high rate of speed along the railroad, in time to avoid a collision with it at the
Other questions are presented by the record, but we do not deem it necessary to pass upon them.
The judgment of the court below is reversed, with instructions to grant a new trial.
Rehearing
On Petition for Rehearing.
A careful review of the case does not result in a different conclusion. The law, as it relates to the standard of care required from a traveler along a street, who crosses a railroad track, is well settled and has often been declared. The duty to look and listen is one which, in the exercise of ordinary care, cannot be evaded. There is no absolute duty on the part of the traveler to stop, but he must exercise ordinary care commensurate with the known danger.
This case is distinguished from the case of Pittsburgh, etc., R. Co. v. Lynch (1909), 43 Ind. App. 177, and other
As is said in Evansville, etc., R. Co. v. Clements (1904), 32 Ind. App. 659: ‘ ‘ The railroad track on the level with the highway is itself a warning of danger. Obstructions to the view admonish the traveler of the peril to which he is exposed. Caution must always be exercised commensurate with the known danger. The failure of the engineer to sound the whistle or ring the bell does not relieve the person approaching the highway from the use of care and ordinary prudence for his safety. What is ordinary care in one case would not be ordinary care in another under a different state of facts. ‘In proportion as the danger increases must the vigilance of the person attempting to cross increase. ’ Oleson v. Lake Shore, etc., R. Co. [1896], 143 Ind. 405, 32 L. R. A. 149, and cases cited; Towers v. Lake Erie, etc., R. Co. [1898], 18 Ind. App. 684, and cases cited.” To the same effect is the case of Baltimore, etc., R. Co. v. Musgrave (1900), 24 Ind. App. 295.
Here the degree of care is different from that of a traveler approaching a crossing with no knowledge of an approach
In the case last cited the court say: “ It is true, as a legal proposition, that the mere omission of signals, or the like, cannot alone, ordinarily, be accepted by a person about to pass over a crossing as an assurance that there is no danger in crossing. * * * A person approaching a railroad crossing has the right to assume that the company will obey the law, by giving the required signals of an approaching train; and if such person, under the circumstances, after having exercised due care, and employed his senses of seeing and hearing, to ascertain if a train is approaching, and thereby avoid danger, can neither see nor hear an advancing or moving train, he is justified in presuming that he can pass over the crossing in safety.”
With this modification of the original opinion, the petition for rehearing is overruled.