177 Ind. 311 | Ind. | 1911
Lead Opinion
This is the second appeal in this canse*, Cleveland,, etc., B. Co. v. Lynn (1909), 171 Ind. 589, 85 N. E. 999, 86 N. E. 1017. On the return of the cause to the* court below, a further, or fourth paragraph of complaint was filed, to which a demurrer was addressed for want of facts sufficient to constitute a cause of action, and was overruled, and that ruling is the first alleged error presented.
The allegations of this paragraph, with reference to looking and listening, which is the ground of attack on this paragraph, are identical with the allegations of the second and third paragraphs, which were before the court on the former appeal, where the same contention was made as here, viz., that the complaint shows that appellee did not look or listen until he was within two or three steps of the track, at which time he was looking to the southeast, when he was immediately struck by a train coming from the northeast, he having alleged a previous looking to the northeast, and. showing a train going in that direction on the eastern track of a double track, the insistence being that his failure to see or hear the train coming from the northeast constitutes contributory negligence as a matter of law.
The only material allegations of the fourth paragraph different from the second and third paragraphs are that in the two latter there is no direct allegation as to the direction from which the train which struck appellee came, while in the fourth paragraph it is alleged that it came from the northeast. The opinion of the court in the former appeal discloses that other allegations of the second and third paragraphs were such as to disclose that the train came from the northeast. The able counsel earnestly insist that a different question is presented by the fourth paragraph, in the allegation that the train came from the northeast, but the application of the rule declared in the former appeal, and in former cases, does not seem to us to change the situation. The same obstruction and the same surrounding conditions are alleged in the second and third paragraphs.
The fact that no obstruction is alleged to the south and east, and might require less attention than in looking to the northeast, in any event only shows a difference in the degree of care required as to one direction rather than another, and still leaves the question as to the care which is alleged as to looking to the northeast, and as the allegations are the same on that question in each paragraph, it must be held to have been determined, as it was specifically, as is shown by the opinion on the former appeal. It is urged that as it is alleged that the track was straight to the northeast, and no other obstruction than the watch-house is alleged, it must be taken that after appellee had passed the watch-house he could have seen. But it is averred that he stopped and looked up the track 250 feet, to see if any train was approaching from that direction, and also listened, but did not see any train approaching, nor hear one. The former appeal directs attention to this allegation, coupled with showing the distance the train would travel in a few seconds, and the possibility that the train was not within 250 feet. If appellant had desired a more specific allegation as to what distance to the northeast the track was straight, or as to
The allegations are that the Chicago and Eastern Illinois Railroad Company had a great number of main tracks and side-tracks east of, and parallel with appellant’s tracks; that appellee was an employe of the former company; that at the time of the accident he was engaged, with his coworkers, in removing the watch-house, which occasioned the obstruction of which he complains, from the south side of Third avenue to the north side; that after setting the watch-house appellee started from a point on the north side of said avenue, about twenty feet west of appellant’s west track, to cross said defendant’s tracks, and when he got to the southeast corner of the watch-house (which is elsewhere alleged to have been in dimensions nine feet north and south, and six feet east and west, and nine feet west of the west.track) “he stopped and looked up defendant’s tracks for a distance of about 250 feet, to see if any train was approaching from that direction, and also listened, and did not see any train approaching from that direction on defendant’s west track, and neither did he hear any train approaching on said track, but he saw and heard a train on said defendant’s east track, north of said avenue, going northeast, whereupon plaintiff looking to the southeast, to see if any trains were approaching from that direction, took two or three steps in said avenue, toward defendant’s tracks, and just as he got one of his feet over the west rail of defendant’s west track, the defendant, by, and through its servants, and agents, in charge of a locomotive engine drawing a train of cars approaching said avenue from the northeast, unlawfully, carelessly, negligently, and in violation of the laws of the State of Indiana, and in violation of said ordinance, within the corporate limits of said city, ran said locomotive engine, and train of cars, without sounding the whistle, or ringing the bell as required by law, and without giving any notice, or warning whatever,” and struck appellee, etc. It is alleged that but for
The evidence shows without contradiction that appellant’s tracks north of Third avenue were in a direct line for 2,700 feet, and ran in a general northerly direction, but slightly east of north. The only obstruction to the vision north and east was the watch-house, which appellant, within a few minutes, had placed on the north side of, but near to the sidewalk on that avenue, the east line of the watch-house being ten feet west of the west rail of appellant’s west track. The watch-house was sixteen and two-tenths feet north and south, eight and two-tenths east and west, and eight feet high. There were no physical connections between the tracks from Third avenue north for a distance of 2,700 feet. Appellee’s statement of the injury was that he had no previous knowledge that the two tracks were operated by appellant, and that the first time he had been on the west side of the tracks was on the morning of the injury, when, as directed by his foreman, he took four other workmen and moved the watch-house from the south side of Third avenue to the north side, and that it took about forty minutes for them to move it across and set it in position. He started to a tool box for a rule, the tool box was a little east of south, near a cinder pit on which they had been working, and the cinder pit was 575 feet from the shanty, but across several tracks. When he started he was on the west side of the watch-house, near the southwest corner, on the north side of
On this state of the evidence the court charged the jury by the fourth instruction as follows: “It cannot be said as a matter of law, that plaintiff while approaching and attempting to cross defendant’s tracks at Third avenue, should have looked and listened for approaching locomotive engines and trains, at any particular point, or at any particular time, or that he should have looked in one direction at a particular time, and in another direction at another particular time. These are questions for you to determine. The law simply says that he should have looked and listened at such time, at such places, and in such directions as a person exercising ordinary prudence would have done under the circumstances surrounding the plaintiff at the time, as shown by all the
The rule in Malott v. Hawkins, supra, on that point goes no further than to hold that the traveler must use ordinary care to select a place from which to look or listen. If the rule in Pittsburgh, etc., R. Co. v. West (1904), 34 Ind. App. 95, 69 N. E. 1017, should obtain on the subject of the presumption of seeing, it should be restricted, as in that case, to
The instruction is also assailed on the ground that it is claimed that the law fixes the quantum of care to be used by a traveler in eases of this kind, and it is not enough that he use ordinary care, and use his senses of sight and hearing, but he must assume that there is danger, and act on that assumption, and that he must listen for signals, and look attentively up and down the track, and on another ground that the court cannot tell the jury the kind of care to be exercised, and leave it to the jury to determine that ordinary
Instructions nine, ten and eleven, requested by appellant, and given, presented the question of the increased vigilance required in the presence of known dangers or hazards, and were not otherwise materially different from the questions presented by instructions four, five and six. It would be inexpedient, if not impossible, to lay down a hard and fast rule on the subject of the quantum, or character of care required in every case, or to go further than the courts have gone in applying a general rule by saying that reasonable care must be used in view of all the circumstances and conditions, in which is involved the necessary elements of looking and listening, and their attendant consequences; the requirement to stop when necessary in order to see or hear, to look or listen from positions where their exercise will be of avail, in seeing or hearing; the requirement of increased caution in the presence of known dangers or signals; but after all, each case must stand on its own peculiar circumstances and facts.
Other general instructions given on the subjects of credibility of witnesses, looking, listening, and care, are assailed by appellant. We have examined each of them with care; they are numerous and voluminous, and it would unduly extend this opinion to set them out, but we are unable to discover harmful error in them.
Aside from this feature of the instruction, the point is disposed of by the opinion on the former appeal, that it cannot be said, as a matter of law, that a traveler is required to look from any particular position, regardless of all other considerations. The question was fully covered by the nineteenth instruction requested by appellant, which is stronger and more specific as to the duty of appellee than the fourteenth.
Instruction sixteen was predicated on the doctrine of contributory negligence from voluntarily selecting a place for looking where seeing is partially obstructed, based on the rule in Lundergan v. New York Gent. R. Co. (1909), 203 Mass. 460, 89 N. E. 625. The distinction between that case and this is, that in that ease there was no requirement for signals, and as is said in that case, with respect to a traveler’s seeing gates open, but the watchman absent, and the traveler’s not knowing that the gates were temporarily out of use, he was justified in regarding this as a circumstance indicating that he might cross in safety, and if nothing more appeared, it would be for the jury to say to what extent he was bound to
Other questions are presented as to the admission and rejection of evidence. We have examined them in detail. Each involves uncontradieted or immaterial facts, or was properly admitted or rejected.
The judgment is affirmed.
Rehearing
On Petition for Rehearing.
The able counsel for appellant have presented a brief on petition for a rehearing, in which their position on the “look and listen” rule is much more clearly presented than in their original brief, their contention being that by the original opinion in the case, the rule of look and listen is abrogated, and if that reasonably can be said to be its construction or effect, their position is well taken, though the court had no idea of that bind, or no suspicion of that construction or effect, because we recognize the rule in all its established force, and had no idea of abandoning it, or limiting it, and if that construction is permissible, it is because
¥e set out in the original opinion the fourth, fifth, and sixth instructions, which at that time we were unable to see abrogated the “look and listen” rule, and after a reexamination we are of the same opinion.
The specific objection is, that they do not require attentive looking and listening, which, as a matter of law, is required, and that the term “ordinary care” is not broad enough to require looking and listening attentively, and that the jury should have been instructed that a traveler in crossing a railroad track is bound to anticipate danger and to look and listen attentively.
Appellee was not an ordinary traveler. He was a workman engaged in the performance of the duties then in hand at that place and while that could not excuse him from looking and listening, yet the character of his duties, and the attention they required, are not to be lost sight of.
The rule does not apply in all its strictness to the former class of persons as to the latter. Cleveland, etc., R. Co. v. Morrey (1909), 172 Ind. 513, 88 N. E. 932; Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 78 N. E. 1033; Chicago, etc., R. Co. v. Vandenberg (1905), 164 Ind. 470, 480, 73 N. E. 990; Pittsburgh, etc., R. Co. v. Seivers (1904), 162 Ind. 234, 243, 67 N. E. 680, 70 N. E. 133; Baltimore, etc., R. Co. v. Peterson (1901), 156 Ind. 364, 59 N. E. 1044.
Appellee was not the servant of appellant, charged with
If the fourth, fifth and sixth instructions absolve appellee from the duty of looking and listening, our former opinion is erroneous, but we do not so understand them, or that they relax the rule in the least.
The only qualification of it that they make is that looking and listening is not required as a matter of law, at any particular place or in any particular direction, and that is settled by the former appeal.
The ease of Pittsburgh, etc., R. Co. v. Seivers, supra,, has some features common to this case, but with this difference, that it is shown that Gaby, appellee’s decedent, did not look at all, while here it appears that appellee did look.
True, he was not at work on the tracks, and it was his duty to look and listen, but he was in a somewhat different situation from an ordinary traveler at a crossing, in that his work occasioned him to cross said tracks, and it was both his right and his duty to do so, and the question, as we conceive it to be, is, Did he use that care and make that use of his senses of sight and hearing proportionate to the danger to be avoided, and the consequences which might result from that neglect, which an ordinarily prudent man under the circumstances should use? If so, that, after all, is the law’s interpretation of ordinary care. Republic Iron, etc., Co. v. Ohler (1903), 161 Ind. 393, 401, 68 N. E. 901; Louisville, etc., R. Co. v. Schmidt (1897), 147 Ind. 638, 46 N. E. 344; Lake Erie, etc., R. Co. v. Stick (1896), 143 Ind. 449, 41
In Malott v. Hawkins (1902), 159 Ind. 127, 134, 63 N. E. 308, it is said: “In cases of this character, a trial court should not, in instructing the jury upon the duty of the person injured or killed, stop with the generality that such person was required to use ordinary care for his own safety, but it should instruct the jury as to some, at least, of the duties of a person about to cross a railway track upon a highway.” That, as we understand it, was done by the court in the fourth, fifth and sixth instructions.
In that case too, following Cleveland, etc., R. Co. v. Harrington, supra, and Chicago, etc., R. Co. v. Thomas (1900), 155 Ind. 634, 58 N. E. 1040, it was affirmed that “it is not ordinarily possible, however, to affirm, as a matter of law, the precise number of feet from the crossing at which a traveler must look and listen, the underlying test being, did the traveler exercise ordinary care, in view of the danger, in selecting the place?” And that is the precise question here urged, that is, that appellee did not select the right place to look, and that question was also determined on the former appeal.
On the question of hearing, it appears that on the second' track east of the one on which appellant was injured, a freight-train was traveling in the direction from which the train which injured plaintiff was coming, and the noise of the two trains may not have been distinguishable.
As to the question of looking, it is in evidence that appellee did look when at a point from which he could see from 250 to 300 feet. If he had looked from a point six or eight feet further east, he could have seen 2,700 feet,
"With the proposition settled on the former appeal, that appellant was not required to look in any particular direction at any particular time, there seems no escape from the proposition that whether he should have seen the train was a question for the jury.
This is necessarily so, unless the court can say, as a matter of law, that ordinary care at a crossing does not involve looking or listening, or that looking and listening is something more than, or apart from, ordinary care.
It seems to us that the latter proposition is the correct one. Stated conversely: If neither looking nor listening be present, ordinary care, as a matter of law, has not been observed. If they be present, it is still a question for the jury, whether they were from points or under circumstances where they would or should be available as notice of a coming train, by reason of the difference between an inference of fact and a presumption of law.
As to the fact, there is no presumption, but a matter of evidence and proof, with the burden of proof on appellant.
In 2 Chamberlayne, Mod. Law of Ev. §1018, it is said: “The burden of proof properly so called, is not affected in the least by the creation of a presumption of law,” citing numerous cases. See, also, 2 Chamberlayne, Mod. Law of Ev. §1082 and note, where the distinction is drawn between presumptions of law and inferences of fact.
An inference of fact may be drawn from another fact or other facts, but a presumption of law is drawn from a particular undisputed fact, or as a conclusion of the law itself, or as is said in Justice v. Lang, supra, “the presumption of the existence of one fact from the existence of another fact, is within the exclusive province of the jury. ’ ’ That is, that a fact otherwise doubtful may be inferred from a fact which is proved; a fact inferred from a fact—but a presumption of law is not founded on a fact deduced by inference, but upon an established fact, on which the law founds its own inference. If these be correct principles, we have a case where appellee did look, but, as claimed, not from the right place in order to see fully, and we are asked to apply the presumption of law that he did see, or should be held to have seen, while, on the other hand, we have the rule of inference of facts as a question for the jury.
If the jury had drawn the inference that he did see, or that he ought to have seen, it would have been conclusive on appellee, and conversely, the general finding covers the inference of fact that he was not bound to see.
The opinion on the former appeal, as it seems to us, covers the question presented by the court’s refusal to give the
Instruction sixteen, refused, does not attempt to advise the jury as to the elements of ordinary care, but advises it, in substance, that if appellee selected the wrong place to look from, he would not have exercised reasonable and ordinary care for his safety, and would be guilty of negligence, precluding a recovery, and is too restricted, especially in view of the holding on the former appeal.
Instruction twenty, refused, was directed to the question of the increased care required of appellee, because the watchman was not at his place of duty.
The evidence shows that this watchman had charge of some sixteen or seventeen tracks. It is shown that appellee was a stranger to the crossing, did not know where the watchman’s place was, nor does the evidence show where it was the latter’s duty to be. The instruction, therefore, was not applicable to any evidence in the case.
If the train was running thirty miles an hour, the highest rate fixed by a number of witnesses, it was traveling forty-four feet each second, six seconds would have put it out of range of 264 feet; five seconds would have put it within a range of 220 feet. If appellee could see only 250 feet, less than six seconds brought the train within that range of vision.
The record does not disclose any finding of the jury as to the rate at which the train was running, and on the former appeal it was said: “But assuming that the train approached said crossing at the rate of thirty miles an hour, it would traverse the distance of 250 feet in less than six seconds, and, in view of the time required to look and listen for trains from the south, and to walk from the watch-house
With this proposition as the law of the case, there eonld be but one other question arising on the evidence, and that is as to the evidence of appellee that he could not see more than 250 or 300 feet because of the watch-house, and whether he was excused from looking after passing beyond the watch-house, and that question is settled by the former appeal, unless the refusal to give instruction twenty-seven was erroneous.
The instruction is too broad, in that it practically instructs that appellee would be guilty of contributory negligence in failing to see because of the shanty; in other words, that under no circumstances could he recover if the shanty caused an obstruction which prevented him from seeing at a particular point. Manifestly the questions of how far he could or did see from the point he looked, and the lapse of time thereafter until he was struck, are approximations, which may have varied either way.
We do not feel justified in disturbing the judgment upon the evidence, after again reviewing it.
Error was urged in the original brief in the amount of the recovery.
Interest on this judgment would produce a third more than he could earn if he worked every day in the year, during his expectancy, besides having the principal now, and while the elements of pain and suffering cannot, and should not be measured with a fine distinction, we are constrained to the belief that the judgment is too large, when we consider that compensation is the rule for assessing damages.
If appellee will remit $3,000 of the judgment, as of the date of the’ return of the verdict, within fifteen days, the
Note.—Reported in 95 N. E. 577 and 98 N. E. 67. See, also, under (1) 33 Cyc. 1003; (2 and 3) 33 Cyc. 1053; (4) 33 Cyc. 1060; (5) 33 Cyc. 1010; (0 and 7.) 33 Cyc. 1140; (8 and 9) 38 Cyc. 1809; (10) Cyc. Anno. (1913) 3220; (11) 38 Cyc. 1612; (12) 33 Cye. 1136; (13) 38 Cyc. 1633; (14) 33 Cye. 1087; (15) 33 Cyc. 831; 37 L. R. A. (N. S.) 136 (16) 38 Cyc. 1693; (17) 33 Cyc. 1073. As to contributory negligence of persons not looking for the approach of cars, see 51 Am. Rep. 300.