*1 Elgin, & Eastern Hatmaker v. Joliet Railway 17, April 22, Rehearing 18,725. denied Filed March [No. 5, denied June 1956.] 1956. Transfer Jennings Spangler, Spangler, William S. & Spangler, Davis, Gary Ridgely Hodges, for of & Hackbert, Hammond, Peters, L. D. of Harlan Glenn Peters, Illinois, Smith, Knox, Chicago, & Smith of Hammond, Stevenson, McHie, Highland & Chicago, Hackbert, (of counsel) Conaghan, & Velde Illinois, against Appellant brought C. this action
Royse, J. allegedly appellee damages personal .injuries received in a accident at Gary, City
on 25th Avenue west of the *2 Among negligence charged com- acts plaint were, give warning signal any failure to bell or warning approach train, of the and failure to lights train. At all the the conclusion of appellee’s evidence the trial court to sustained motion jury it, instruct to return a verdict for and the thereupon jury court instructed the to return a verdict asigned overruling error The here is the specifications motion for a new trial. The upon of that are, motion here relied that the court erred sustaining appellee’s motion for a verdict in its favor, giving and in instruction.
Appellee has raised certain technical toas appellant the brief pre- and as to whether she has any proper objection served giving per- emptory instruction. Our examination of the brief and record discloses there no is merit to this contention. question presented requires a consideration of evidence most favorable to
The record p.m. discloses that about seven 17th train was the 25th Avenue from the north. It was dark require lights. Appellant to riding was automobile of her husband. He was west on 25th approached Avenue. As he slowed speed down to a of about per five miles hour. He looked both but did not hear a bell or whistle and lights. saw no The area around the intersection before quiet. the accident was The window on his side of the right down, side car and on about half was just sitting crack. it down other whistle or Appellant did hear a or not engine. signal and did see they they As reached the intersection nothing, ways and saw about a second. She honey.” go, “Let’s and she said: I the train “At time One witness said: any I did at toward ring I the bell blow or time hear it I to blow”. “When am never listen so used say its train, whether it had I couldn’t I looked at lights did not”. “I know whether on. don’t lights the car its on”. believe had appeal be question presented been frequently Supreme Court this court and our fore years. New Callahan v. In the recent case of (1955), App. Ind. York Central Railroad *3 (Transfer denied), opinion E. 2d 263 by Judge relied Kendall reviewed most the cases we parties upon by hereto. there reiterated We firmly-established that where the of reason rule minds might persons have differed able contributory negligence, negligence and it was error direct trial court to a verdict favor of opinion defendant. We are is the situation in this case.
Therefore, judgment is reversed instruc- with to sustain motion for trial. tions new Crumpacker, J., opinion. dissents with OPINION
DISSENTING J., Notwithstanding dissents. Crumpacker, Supreme of this decisions Court I think there state, exists, jurisprudence such still negligence thing contributory law. as a matter of as words, said, many the courts have not in so Of course thing negligence is as “There no such as persistent disposition to a matter of law” but their ignore appears they accomplished it when it result. same meaning they, her- that when testified husband, where the acci-
self and reached controversy they “sat there a second.” dent in occurred approaching quiet listened The area was she noise bell or other trains but heard no whistle or but her of a train. She nothing husband, who was to her car, go, honey.” During “let’s the moment looking listening prox- the train was in close later, imity as struck her seconds seeing only dark and her it is that it was excuse engine. I and she saw no realize that our repeatedly held that where one courts have is for the sound of a to hear and listens neither, on an train and hears such competent fact neither was sounded and is sufficient to take the of the defendant’s failing sound them to the gone say, however, far have never so as to one for the noise of an listens but none, that fact hears is evidence that the train made no absurdity proposition noise. The of such a is at once charge apparent. equally It is absurd not to one with having simply seen a train which is within his view *4 says But, he because he looked and did not see it. the appellants says, happened the accident in at 7 o’clock April 17, reasonably can the in- be ferred that the train was not within her view when headlight on the dark and
she looked engine nevertheless lit. fact remains was not case, were in no every who disinterested witness appellant, to see than better crossing. To quite from when it a distance significance permit to state a me illustrate the hypothetical bus with 20 of motor case. driver approaches passengers a railroad aboard Everybody approaching train stops. the bus sees crossing except proximity to driver close proceeds Certainly across track and hit. who facts, considering men, would such state of reasonable the driver either did be forced to the conclusion not look or if he looked he did heed what saw. His he looked no train sworn statement and saw probative lack value to warrant would sufficient submission jury.
to the weighing criticized trial courts trial, evidence, setting motions for a new aside contrary great preponderance verdicts that are yet, courage when a trial court verdict, we, care, to direct a with meticulous invariably search the record almost find some item through conclude, of evidence or inference which we process reasoning, of tenuous is sufficient to take the case to the judgment. affirm the would E. 2d Reported
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