27 Ind. App. 210 | Ind. Ct. App. | 1901
Action for damages for alleged injuries at a street crossing on appellant’s road in the city of Anderson. Complaint in one paragraph to which a demurrer was overruled. Trial upon the general issue, general verdict for appellee, and answers to interrogatories. Appellant’s motion for judgment on the answers and its motion for a new trial were overruled. These rulings are the only errors assigned which are discussed.
Appellant’s railroad runs east and west through the city of Anderson, and crosses at right angles Meridian street, a brick paved street twenty-seven feet wide and a principal thoroughfare. At the crossing appellant has five tracks crossing the street, and south of these a sixth track, known as the Bronnenberg track, which abuts the east side of the street. The south track of those crossing the street is known as house track number one. Along the center of the street is a street railroad. These tracks and the street are substantially on the same level.
The jury answered that between 6:30 and 7 p. m. on June 27, 1898, appellee, twenty years old, average bodily activity, good sight and hearing, sufficiently skilled in riding a bicycle readily to control its movements, was riding a bicycle on Meridian street and attempted to cross the tracks. When she came to a point fifty feet from the track on which the car that struck her stood she was traveling six miles an hour, and four miles per hour as she passed from a point fifty feet from the track to a point ten feet from the track, and the same speed from a point ten feet from the track to
It is well settled that the crossing of a highway by a railroad track is a place of known danger and that a traveler on the highway must approach it as such under the apprehension that a train is liable to cross at any moment, and that the traveler’s negligence is shown if an accident happens which might have been avoided by the use of his faculties. The rule is also well established that all reasonable presumptions must be indulged against the special answers and in support of the general verdict, and if the general verdict, thus supported, is not in irreconcilable conflict with the special answers, it must stand.
The answers show appellee was familiar with the crossing and with the uses to which the tracks were put by appellant.
The bicycle had rubber tires and made no noise; appellee was riding about four miles an hour, was looking both east and west and saw no car or engine approaching; she saw the engine about a block away going away from the street crossing; she listened and heard no car approaching; she saw the car standing at the crossing with no car attached and no locomotive nearer than a square away, and going away from the car. The car that struck the standing car was uncoupled from the engine about a block away and with the momentum given to it at that place ran down to and against the standing car. The jury found the approaching car made no noise. Appellee testified that she knew the crossing was dangerous, that she was riding slowly as she could ride, about as slow as any ordinary walk as she approached the crossing; that she looked both east and west for trains, and listened, and saw the train going east and thought everything all right and started across, that she knew where the watch-house was and looked for a watchman but none was there at
The failure to give warning or the required signals at a crossing does not excuse the party injured from the exercise of due care. But in determining the question of appellee’s conduct before and at the time she approached the crossing it is proper to consider along with other facts and circumstances as to her conduct at the time and place, the failure of the company to give the statutory signals. In Indianapolis, etc., R. Co. v. McLin, 82 Ind. 435, the court said: “He [the party injured] looked and listened, but could neither see nor hear an approaching train. Ho bell was ringing, no whistle sounding. Everything indicated the absence of danger. He had a right to know, for such is the law, that it was quite as much the duty of the appellant to give timely warning of the approach of its cars to' the crossing as it was his duty to listen for such warning. He listened, but there was no warning; he looked but no train or danger could be seen. This was all the law, under the circumstances, required. While it is true that the failure of the appellant to give warning did not relieve the appellee’s son from exercising care to avoid injury, yet the absence of such warning is a circumstance to be taken into consideration in determining whether he did exercise the degree of care required or not.” Pittsburgh, etc., R. Co. v. Martin, 82 Ind. 476; Cleveland, etc., R. Co. v. Harrington, 131 Ind. 426; Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 10 Am. St. 136; Chicago, etc., R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761; Baltimore, etc., R. Co. v. Conoyer, 149 Ind. 524; Louisville, etc., R. Co. v. Williams, 20 Ind. App. 576.
There are cases where the failure of a bicycle rider to stop and alight before proceeding to cross is held negligence; but taking all the conditions as they existed at the time and place appellee was injured, and the precautions she took to avoid danger as she approached the crossing, we can not say, as matter of law, that her failure to stop and alight was negli
Among others the court gave the»following instruction: “27. It was the duty of the defendant, under the law, in the operation of its trains and cars, when approaching a street crossing in a city, to give warning of the approach of such train or cars; and the plaintiff on approaching such railroad crossing on the street had a right to assume that the defendant would obey the law by giving the required signal of ringing the bell or sounding the whistle of its locomotive, or some other warning of an approaching train or cars; and if you find from the evidence that the defendant failed to give any warning of the approach of its train or cars at such crossing that injured plaintiff, and you further find that plaintiff, before she entered upon defendant’s railway, exercised ordinary and reasonable care, by using her senses of sight and hearing at such point where she could have heard or seen the approach of such train or cars, to ascertain if any trains or cars were approaching, and with such exercise of her sight and hearing from such point could neither hear nor see an approaching train or cars, she was justified in presuming that she could pass over the defendant’s railway in safety.”
In a number of other instructions given, the jury was very fully instructed as to appellee’s duty as she approached the crossing. And when considered in connection with these instructions we do not think the above instruction would be construed by the jury as meaning that if appellee could see and hear an approaching train at any point before she reached the crossing, and used ordinary care in looking and listening at that particular point, and from such point could neither see nor hear an approaching train, that she had the right to presume that she could pass over in safety. When taken with the other instructions the instruction would not have been thus necessarily restricted in its meaning.
’ The jury had been fully instructed that appellee could not recover if her own negligence contributed to her injury. And keeping in view the familiar rule that instructions must be considered together as a whole and if the instructions when so considered state the law of the case correctly error in a single instruction or clause of an instruction will not be cause for reversal, it can not be said that the jury would be misled by this instruction into believing that if the company was negligent it was liable regardless of appellee’s contributory negligence.
It is also' argued that the court erred in permitting the jury to view the crossing, over the objection of appellant, after an affidavit had been introduced that the crossing and its surroundings were materially changed. The affidavit discloses that there had been a change in the position of cars, but it is not claimed there had been any change in the location and position of the tracks. A plat had been used at the trial showing the crossing, and in an instruction the court told the jury that they were permitted to' view the premises to enable them better to understand the testimony of witnesses and any other evidence respecting the same, but that they were not to take into consideration, in deciding the case, as evidence, anything they may have seen or heard while viewing the. premises; that they must decide the case upon the evidence introduced while in the court room during the trial. Appellant has not shown that it was in any
It was not necessarily negligence for appellee to attempt to cross the track in close proximity to the standing car when she might have gone farther away from the car and possibly escaped injury. The court properly instructed the jury that if appellee was acquainted with the crossing and the use of the tracks, that the abutting track was filled with cars and a freight car was standing on the first track that crossed the street so that the west end projected over the east sidewalk and into the street, and the west half of the street was unobstructed, that appellee was riding on the east side of the street and could have crossed to the west side where there was no obstruction, but instead of doing so she continued riding on the east side of the street and attempted to cross in close proximity to the car, that the jury might take into' consideration all these facts in determining whether she was guilty of negligence contributing to her injury.
There is no error in the record for which the judgment should be reversed.
Judgment affirmed.