149 Ind. 490 | Ind. | 1898
Appellee’s intestate, Dr. Joseph H. Baker, of the age of thirty-nine years, on the 16th day of December, 1893, was killed as he was in. the act of passing over appellant’s railroad track at the crossing of a public highway in the country, in Tippecanoe county, Indiana, by reason of. one of appellant’s engines, to which a caboose was attached, colliding at
The errors assigned in this court, are, in part, based upon the court’s overruling the demurrer to the first paragraph of the complaint, and upon its sustaining the motion of the appellee for judgment on the verdict, and in denying that of appellant, and in overruling its motion for a new trial.
Assuming, without deciding, that the first paragraph of the complaint sufficiently charges a willful or intentional killing of the deceased by the servants of appellant, we pass to the consideration of the sufficiency of the facts embraced in the special verdict
The verdict, after stating facts to show that, the plaintiff is the administrator of the estate of Joseph H. Baker, deceased, etc., and that the defendant is a corporation operating a railroad from the city of Indianapolis, Indiana, through the township of Wea, in Tippecanoe county, in said State, proceeds as follows: “that in said Wea township the railroad track of said defendant is crossed by a public highway, which is frequently traveled, known as the ‘Stubtail Gravel;’ that said highway runs in a northerly and southerly direction, and crosses said railroad track on the same grade; that said railroad track at said point runs in a northwesterly and southeasterly direction, and approaches and crosses said highway from the southeast at an angle of forty degrees; that from a point on said railroad track 2,265J feet southeast of said highway crossing said "railroad track is, for a distance of I, 391 feet towards said highway crossing on a descending grade of 251-3 feet per mile, and from there to said highway crossing is on an ascending grade of six feet per mile; that at a point 2,265-J feet southeast of said highway crossing, and extending thence in a southeasterly direction along the west side of said railroad track for a distance of 2,300 feet, there is a hedge fence 20 to 25 feet high; that at a point 4S2 feet southeast of said highway crossing, and from thence for a distance of 525| feet, said railroad track is in a cut which is in some places six feet deep, but of an average depth of 3£ feet; that on the east side of said highway, and south of said railroad track, there is a barn and frame house; that the north line of said barn is 452 feet south of the place where said highway and railroad cross; that the north line of said frame house is 337 feet south of said crossing;
The burden on the issue joined between the parties to this action was cast upon the plaintiff below, appellee here. It has been affirmed and reaffirmed by the decisions of this court that the office of the special verdict is to find facts, and that no omission of -a fact therein can be supplied by intendment. A failure to find a fact in favor of the party upon whom the burden of establishing it rests is equivalent to an express finding against him as to that fact. It is also a well settled rule of procedure that when a party who has the onus under the issues in the case demands a judgment in his favor on the facts stated in a special verdict, he is required to show by the material facts therein, which are within the issues, that he is entitled to a judgment; otherwise, he will fail in his demand. But where the moving party is not the one upon whom rests the burden of the issue, he may obtain a judgment in his favor with less difficulty, as it is a well recognized principle that the right of a party not having the burden to be awarded a judgment depends not alone upon the presence therein of material facts, but he may be entitled to it solely for the reason that there is an absence of some essential fact or facts which it was incumbent on his adversary to establish. Rice v. City of Evansville, 108 Ind. 7; Trittipo v. Morgan, 99 Ind. 269; Elliott’s App. Proc., sections 758 and 754.
The appellee in this case, in order to prevail, if at all, must do so upon the cause of action alleged and set up in the first paragraph. The theory of the complaint, as constituted by this paragraph, as here
The controlling question in t'he case does not depend on the negligence of either the appellant or appellee’s intestate, and a recovery in favor of the appellee can only be sustained upon the ground that the injury which caused the death was willfully or intentionally inflicted, or that the act or conduct of the appellant from which in this case the fatal injury resulted was willful on its part, and of such a character, in the latter event, that the effects which followed must reasonably have been anticipated as the natural and probable consequences of said act or conduct. Louisville, etc., R. W. Co. v. Bryan, 107 Ind. 51; Belt R. R., etc., Co. v. Mann, 107 Ind. 89; Louisville, etc., R. W. Co. v. Ader, 110 Ind. 376; Fisher v. Louisville, etc., R.W. Co., supra; Conner v. Citizens’ Street R. R. Co., 146 Ind. 430.
Mitchell, J., speaking as the organ of this court, in the Bryan case above cited, in reference to the rule applicable to a willful or intentional injury, said: “Where one person negligently comes into a situation of peril, before another can be held liable for an injury to him, it must appear that the latter had, Jcnowlledge of his situation in time to have prevented the injury. Or it must appear that the injurious act or omission was by design, and was such — considering
In Conner v. Citizens Street R. R. Co., supra, this court, after referring to cases in which contributory negligence on the part of the injured person was not a bar to a recovery, said: “The substance of the rule as established by the cases to which we have referred is, that to entitle one to recover for an injury without showing his own freedom from contributory fault, the injurious act or omission- must have been purposely and intentionally committed, with a design to produce injury, or it must have been committed under such circumstances as that its natural and reasonable consequence would be to produce injury to others, the actor having knowledge of the situation of those others.”
Our decisions recognize the doctrine, that where the act of the wrongdoer is so recklessly done, in disregard of the probably consequences, a willingness or intention to inflict the injury which results therefrom may be implied, and the distinction between an actual intention to do the injury, and a constructive one is shown. See Pennsylvania Co. v. Sinclair, 62 Ind. 301; Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250, and cases there cited; Cincinnati, etc., R. R. Co. v. Cooper, 120 Ind. 469.
In the appeal of Parker v. Pennsylvania Co., 134 Ind. 673, the difference between willfulness and negligence as defined by the law is pointed out. It is there said: “Willfulness does not consist in negligence. On the contrary, as illustrated by the cases of Bryan and
Tested by the doctrine affirmed by the authorities to which we have referred (and others hereafter cited), which has been so uniformly asserted and adhered to by this court in its later decisions, the inquiry is: Do the facts embraced in the special verdict, — rejecting, as we must, conclusions and surmises of the jury, and facts of an evidentiary character, — when considered as an entirety, with all irresistible inferences- that may result therefrom, entitle the appellee to a recovery for the willful or intentional wrong perpetrated by the appellant, as alleged in the complaint? We are of the opinion that the facts as found by the jury do not warrant a judgment in favor of the appellee on the issue tendered by his complaint. It may be conceded that the failure or omission of appellant’s employes in charge of the engine upon the occasion in question to give the signals-required by law when the engine was approaching the crossing of the public highway where the collision occurred was negligence per se; but, as heretofore mentioned, the question of negligence is not one with which we have to deal, and under the issues we cannot affirm a judgment based on the negligence of the defendant, although the same could be said to have been gross. The doctrine of comparative negligence does not obtain recognition in this State, and, where the negligence of the injured party contributes to the proximate cause of the injury, a comparison will not be made between the negligence of the person injured, and that of the party charged
The liability of appellant, under the circumstances in this case, must be tested or measured by the acts or conduct of its employes in control of the engine after they became aware that the deceased was approaching the crossing where the collision occurred. Terre Haute, etc., R. R. Co. v. Graham, supra. But we may again affirm that the liability of the company, under the issues in the action, cannot be fixed or controlled by the negligence of its servants on the occasion in question. An examination of the facts stated in the verdict discloses that when the train was approaching the Stubtail Gravel crossing, at which the collision occurred, it was running at a speed of thirty-five miles per hour, and when at a point 1,200 or 1,300 feet from the crossing, the fireman, who was on the left or south side of the engine, first saw the buggy in which the deceased was riding on the highway; that at that time it was one hundred and fifty feet from the crossing, and the horse drawing the buggy was moving in a slow walk towards the crossing, which gait was continued until the latter was reached. It also appears that from t'he time the fireman first saw the horse and buggy he continuously observed the same until
It was apparently but a moment before the collision that the deceased entered upon the track. It is true that he was seen approaching the crossing at a slow gait, but as we view the legitimate facts in the case, there is nothing that could have indicated to the fireman, to whom the willfulness to injure him is imputed, that he would not at least look, even if he could not hear the train by reason of the wind, and thereby be warned of the impending danger. There are no facts or inferences that may be deduced therefrom to show that the fireman or engineer, after becoming aware that the deceased was not going to. stop before entering on the track, failed or omitted to exercise the proper degree of care by employing the means at hand to prevent the collision. The instant it appeared that he was not going to stop, all seems to have been done that could be, to prevent the engine from colliding with the buggy. In reason it cannot be claimed, under the circumstances, that appellee’s decedent
Where a person traveling on a highwdy, in his approach to a point where it crosses a railroad, can, by looking or listening, see or hear an approaching train in time to avoid injury, in the event he is injured, under such circumstances, by a collision, the law assumes that he neither looked nor listened, or, if he did either, that he did not heed what he saw or heard. Smith v. Wabash R. R. Co., 141 Ind. 92, and authorities there cited.
While the rights of a traveler on a public highway to pass over a railroad crossing of such highway may be said, ordinarily, to be equal to that of the railroad company, nevertheless he is required to exercise due caution or care under the circumstances. He is bound to know that there may be peril in attempting to cross. The railroad track is itself an admonition of danger. He is bound to know that he must yield precedence to the trains of the company, and has no right even to expect that their speed will be slackened, much less to
A standard author states the rule applicable to railroad crossings over rural, highways as follows: “While unusual speed of railway trains does not of itself constitute negligence, yet it may be considered with other circumstances in determining the degree of care exercised. The law does not require the speed of trains to be slackened on approaching the crossing of a public highway in the country when a team is seen approaching it.” 2 Wood’s Railway Law, pp. 1330 and 1331.
It is true that the traveler has the right to presume that the company will discharge its statutory duty, and give the signals as required by the law; still this does not relieve him from using his own senses and exercising due care to avoid injury in crossing.
In the appeal of Lake Shore, etc., R. R. Co. v. Miller, 25 Mich. 274, the court said: “But if an engineer see a team and carriage, or a man in the act of crossing the track, far enough ahead of him to have ample time, in the ordinary course of such movements, to get entirely out of the way before the approach of the engine; or if he sees a man walking along the track at a considerable distance ahead, and is not aware that he is deaf or insane, or from some other cause insensible of the danger; or if he sees a team or man approaching a crossing too near the train to get over in time, he has a right to rely upon the laws of nature and the ordinary course of things, and to presume that the man • driving the team or walking upon the track, has the use of his senses, and will act upon the principles of common sense and the motive of self-preservation
In the opinion in the case of Maryland, etc., R. R. Co. v. Neubeur, 62 Md. 391, the rule is stated as follows: “But it was not the duty of those in charge of the train to anticipate the conduct of the plaintiff, and because they saw him approach the crossing to conclude that he would attempt to cross in advance of the train. On the contrary, they were, or would have been, fully justified in supposing he would not venture to cross until after the passage of the train. Telfer v. North R. R. Co., 30 N. J. 188.”
The principle asserted by these cases and other authorities to which reference has been made goes far to rebut the theory and contention of appellee’s learned counsel that the killing of the deceased, under the facts and circumstances in this case, was willful or intentional.
Counsel for the appellee, however, place much stress on that part of the finding of the jury which is to the effect that the fireman on the train, when the deceased was at a point on the highway more than one hundred feet south of the crossing, knew that the latter did not see or know that a train was approaching the crossing, and that the fireman knew that, unless the bell was rung or the whistle sounded, or some warning given, that the deceased would go on to the crossing, and be struck by the engine. By this finding the legal presumptions in favor of the fireman are said to be of no avail in this case. In what manner, or by the means of what evidence, the jury could look back to the occasion in controversy, to the time when the engine, on which the fireman was riding1, was some distance from the crossing, and the vehicle in which the deceased was driving leisurely along the highway was a hundred feet and over away from the
Mere surmises, guesses, or conjectures of the jury can lend no support to their verdicts. In Babcock v. Fitchburg R. R. Co., 140 N. Y. 308, it is said: “Verdicts must stand upon evidence and not upon mere conjecture, however plausible, and if the situation be such that the plaintiff cannot furnish the evidence the misfortune is his.”
Appellee also insists, that the part of the verdict which immediately follows that portion which states what the fireman knew, what the deceased knew, and how he would act, lends much strength to their contention that at least the facts show that there was an implied intention on the fireman’s part to willfully inflict the fatal injury. The clause in question is as follows: “That the act of said fireman in not giving or causing to be given any signal by bell or whistle, or
We have given the argument and reasons of appellee’s learned and able counsel, and the authorities which they have cited to sustain the judgment under the special verdict, full consideration, but, in our opinion, there can b¡e no escape from the conclusion that the facts embraced in the verdict cannot sustain a recovery by the appellee under the issues tendered by his complaint. By dismissing the alleged cause of action based on the grounds of a negligent killing of his decedent, he would seem'to have conceded that he could not recover on these grounds; possibly for the reason that absence of contributory negligence on the part of the deceased could not be shown.
It follows from the conclusion reached that the court erred in awarding a judgment on the special verdict in favor of the appellee.
The judgment is therefore reversed, and the cause remanded to the lower court, with instructions to overrule appellee’s motion, and render judgment on the special verdict in favor of appellant.