175 Ind. 161 | Ind. | 1910
Lead Opinion
This is an appeal from a judgment awarding damages to appellee for the alleged negligent killing of her decedent at a highway crossing over appellant’s railway.
The errors relied on are, overruling the motion for judgment upon the answers to the interrogatories, and overruling the motion for a new trial.
The pertinent portions of the complaint, necessary to an understanding of the ruling on the motion for judgment upon the answers to the interrogatories are, that the railroad crossed a highway at right angles; that at the point of crossing, and for a long distance east, the railroad runs through a deep cut, and a train approaching the highway from the east could not be seen by a traveler coming from the north until he got upon the track; that banks twenty-five to thirty feet high lay along the cut of said road for a distance of one and one-half miles east, and obstructed any view of trains; that the track from one mile east of the crossing to some distance west thereof was down grade; that while decedent was approaching the railroad crossing from the north, in a light wagon drawn by one horse, a locomotive on defendant’s road was approaching the crossing from the east; that defendant negligently failed to ring the bell or blow the whistle, when within a distance of one hundred twenty
The interrogatories and the answers thereto show that the accident occurred at 8:35 o’clock p. m., October 7; that the right of way was 100 feet wide, with a single track in the center, crossing the highway at right angles on a level; that the engine was equipped with the ordinary headlight, ten feet nine and one-half inches above the track; that said headlight was lighted; that decedent at the time of the accident was in a covered wagon, with side curtains extending to the front line of the seat; that the horse was gentle and easily managed; that decedent was accustomed to driving; that the night was clear, and there was no wind; that decedent’s hearing and eyesight were good; that he could read; that there was a sign “Railroad Crossing” in big letters at the crossing; that decedent was thirty-nine years old; that if decedent in approaching the crossing on this occasion, at a point in the highway forty-seven feet north of the track, had looked east, he could have seen the headlight of the engine for a distance of eighty rods, and thence continuously as he approached the crossing he could have seen it for that distance or more; that the track was on
The interrogatories and answers do not disclose whether appellee’s decedent knew of the existence of the railway crossing at that point, or where the signpost was located; nor do they disclose whether he could see such post.
Sarah Carver, who resided about ten rods south of the crossing, on the west side of the highway, in a house fifty feet from the highway, where she had lived for thirty-five years, testified that she was at home at the time of the accident. She heard a crash and heard a whistle at the same time. She did not hear any whistle before that time, but heard the whistle and the crash at the same time. She did not hear the bell. The railroad had been there about twenty-six years, and many trains were run over it each way every day. Her hearing was very good. The whistle and the crash were close together — she thought at the same time. She went to tell her husband, and he had already started. She and her husband were alone in the house. There was no noise around the house. The kitchen door, at the northwest side of the house, was open. Said witness was sitting at a table.
James O’Connor, thirty-five years old, a farmer living in a house where he was born and reared, situated about fifty rods north of the crossing, and on the east side of the highway, was at home at the time of the accident. Looking from his house after the accident he saw the engine about ninety rods west of the crossing. He heard the train as it passed over the crossing, and he heard “ three short, shrill blasts, and then came a thump.” Very little time elapsed between the whistle and the bump. “ They hardly quit whistling, when it hit him.” He did not hear any whistle before that time, and he did not hear any bell at any time, as said train approached the crossing. To the question “Was any whistle blown? ” he answered “ No, sir.” He further testified that
The force and effect of this evidence was a question to be determined by the jury. It might to some minds leave doubt as to whether the signals were omitted, but to others it might furnish conviction that they were not given; but however that may be, that was a question solely for the jury, and we cannot determine for a jury what weight should be given to any evidence of-a witness over the evidence of any other witness. Board, etc., v. Garrigus (1905), 164 Ind. 589; Ohio, etc., R. Co. v. Buck (1892), 130 Ind. 300; New York, etc., R. Co. v. Robbins (1906), 38 Ind. App. 172.
There are cases that hold that the testimony of witnesses, who are in a position to hear, that they heard no signals, is not negative evidence in the sense that it is testimony of witnesses who did not know whether signals were given or not. Cleveland, etc., R. Co. v. Wuest (1907), 40 Ind. App. 693; New York, etc., R. Co. v. Robbins, supra; Voak v. Northern Cent. R. Co. (1878), 75 N. Y. 320; 6 Thompson, Negligence (2d ed.) §7865, and cases cited.
For example, in this case it is a reasonable inference that, with decedent as near to the track as he was, and struck as he was, if a shrill whistle had been blown or the bell rung, or both as the statute requires, on a clear night, he would have heard in time to place himself in safety. At any rate, we cannot usurp the functions of the jury and determine a question upon which there was competent evidence both ways.
In Nichols v. Baltimore, etc., R. Co. (1904), 33 Ind. App. 229, it was correctly held that there is no presumption that one injured at a highway crossing was negligent, because the burden of showing negligence is upon defendant; but it was incorrectly held that the presumption is that he was without fault.
If a traveler is injured at a railway crossing, there is no presumption, in the absence of evidence, either for or against negligence. The traveler is not aided by a presumption of freedom from fault, nor the railway by a presumption of contributory negligence. It is simply a failure of proof upon the part of the railway as to an issue, the burden of showing which is by statute cast upon it. The question is clearly presented in the cases of City of Indianapolis v. Keeley (1906), 167
In Southern Ind. R. Co. v. Peyton (1902), 157 Ind. 690, the question arose upon a demurrer to the complaint, the point being made that there was no averment that the engineer before crossing another railway track stopped his train, and looked and listened before attempting to cross. It was not necessary that plaintiff should aver his freedom from contributory negligence. If it was negligent for him to fail to stop, look and listen, that was a matter of defense, a matter of proof under all the evidence, and there is no room for presumptions. The court there said that “ if any presumption will arise from the absence of an averment as to the fact, it must be that he did stop it.” As it was an unnecessary allegation, in any view of the case, it was unnecessary to suggest any question of presumptions, and the opinion on the whole is not open to the interpretation that it holds that there is a presumption that he did stop.
It is urged that decedent is shown by the evidence to have been acquainted with the crossing. Conceding that to be true, the question still resolves itself into one of ordinary care in passing it, under the conditions and surroundings.
The judgment is affirmed.
Rehearing
Appellant’s construction is that decedent could see the headlight continuously within the eighty rods, but that is not the finding. The finding is, that the train would have been visible to decedent at and beyond a point eighty rods from the crossing continuously as he approached such crossing, if such train had been at or beyond such point, and not that it could have been seen as it approached when within the eighty rods, and it is equally clear under the finding that the train was considerably within the eighty rods; so that notwithstanding the obstructions, as alleged, we would be bound, in order to overthrow the general verdict, to infer that he could have seen it within the eighty rods, which we cannot do. Careful reconsideration of the question confirms us in our original opinion. The petition for a rehearing is overruled.