71 Ind. App. 567 | Ind. Ct. App. | 1919
— Tbis was an action brought by appellee against appellant to recover damages for personal injuries alleged to bave been sustained while riding in an automobile, and traveling eastward upon the highway known as the Montmorenci road at the point
There were three paragraphs of the complaint, but, the first having been dismissed, the case was tried upon the second and third paragraphs, to each of which the appellant had separately demurred for want of facts, with memoranda of deficiencies required by the. statute, which demurrers were by the court overruled, and to which action appellant had excepted. To each of said second and third paragraphs the appellant had answered in general denial. The cause was submitted to a jury for trial, which returned its verdict in favor of appellee, together with answers to certain interrogatories submitted to it by the court.
Appellant duly filed its motion for judgment in its favor upon these answers to interrogatories so made and returned by the jury, and also filed its motion for a new trial, each of which was overruled and exception duly taken.
The errors assigned and relied upon require a consideration of the questions hereinafter determined.
The first question to be considered is as to the. sufficiency of the second paragraph of the complaint; This paragraph of complaint is quite lengthy and no good purpose would be served by setting out the same in its entirety. In this paragraph of complaint the facts are alleged showing the physical surroundings of said' crossing and its unusual dangers at the time appellee and those with whom she was riding attempted to. cross the tracks of appellant at the point in ques-: tion. The negligence charged in this paragraph relates to the manner in which the passenger train, by
The complaint further avers that appellee’s injuries as in said complaint set forth were caused solely on account of the acts of negligence by the appellant, its servants and agents as therein averred, and not otherwise.
The third paragraph of complaint, as to the description and surroundings of said crossing, is in its allegations similar to the second, hut said paragraph further alleges that: “When the locomotive of such passenger train was more than twenty-five hundred feet from such crossing, the servants in charge of such locomotive, including the engineer who was operating the same saw the automobile in which the plaintiff was riding, standing within a few feet of such crossing, and believed that said automobile would start forward across said track as soon as the freight trains had cleared the same.
“And the plaintiff avers that the said engineer and other servants in charge of said locomotive engine continued to observe said automobile in which the plaintiff was riding from the place where said servants first observed such automobile as aforesaid, and the said engineer and said servants saw said automobile start forward and move toward said track, and such servants in charge of said engine knew that such automobile in which the plaintiff was riding was entering a place of danger and peril from which the occupants of .said automobile would he unable to-extricate themselves. That said engineer and servants in charge of said locomotive engine knew that the occupants of said automobile did not know of the approach of said locomotive engine in charge of said*573 passenger train being rnn at such a high and dangerous rate of speed, and the plaintiff avers that notwithstanding the fact that the plaintiff was unconsciously entering into a place of danger and peril, and notwithstanding the servants in charge of said engine knew that the plaintiff was entering into a place of danger and peril from which she would be unable to extricate herself, the servants in charge of said locomotive engine carelessly and negligently after having such knowledge, continued to run and propel such engine at such high and dangerous rate of speed, without making any effort whatever to stop or check the same and without making any effort to give any other or additional warning to the plaintiff until within a few feet of said crossing, and the plaintiff avers that such locomotive engine so run and operated at such high and dangerous rate of speed continued to be run and operated at such speed to and against the automobile in which plaintiff was at the time riding. That such passenger locomotive and train struck such automobile in which plaintiff was riding with great force and violence, thereby and on account thereof plaintiff was injured in the following manner: (Here the injuries are stated.)
“The plaintiff further avers that the servants in charge of said locomotive engine could easily have stopped or checked said engine and could have avoided .collision with such automobile after they knew and realized that the plaintiff was entering into a place of peril from which she would be unable to extricate herself, but they carelessly and negligently refused so to do;”
In the case of Chicago, etc. R. Co. v. Perkins (1888), 125 Ill. 127, 17 N. E. 1, which was a crossing case, it was said: “If a railroad company, in the running.of its trains, had no duty to perform except what the legislature might prescribe, the position of counsel might be well taken; but such is not the case. A railroad company, in the running of its trains, is required to use ordinary care and prudence to guard against injury to the person or property of those who may be traveling upon the public highways and are required to cross its tracks, whether required by the statute or not. The fact that the statute may provide one precaution does not relieve the company from adopting such others as public safety and common prudence may dictate.”
In the case of Continental Improvement Co. v. Stead (1877), 95 U. S. 161, 24 L. Ed. 403, in which case the cause of action arose in Indiana, the court said: “We think it is in accordance with well-settled law and with good sense. If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of
In the case of Bellefontaine R. Co. v. Hunter (1870), 33 Ind. 335, 366, 5 Am. Rep. 201, the court said: ‘ ‘ On the other hand, the company are required to keep a reasonable lookout at public crossings and to give such signals of their approach as are calculated to notify the public, when without such signals, and in the exercise of the proper care and caution by the public, their proximity would not otherwise be known. Thus, if the track were concealed from view, and the sound of the train from high wind or any other cause was destroyed, it would devolve upon the'company to use any other usual and proper method to give notice to passengers upon the highway. ’ ’
The court did not err in overruling the demurrer to this paragraph of complaint.
It is next urged that the court erred in overruling appellant’s motion for judgment in its favor, upon the answers to interrogatories returned by the jury, notwithstanding the general verdict.
It is next urged that the court erred in overruling appellant’s motion for a new trial.
In this motion it is assigned, among other reasons, that the court erred in giving certain instructions at the request of the appellee.
Among other instructions thus challenged are the ninth and tenth of said instructions, which read as follows: “9. The law of this state requires a railway company, such as the defendant, when operating a train over its railroad in this state, as the defendant was operating its train which is alleged to have caused the injury sued for-in this case, to sound the-whistle attached to the locomotive moving such train three times when not less than eighty or more than one hundred rods from any highway crossing over which the train is to pass, and to ring the bell attached to such locomotive continuously from the time of sounding the whistle- until the locomotive has cleared the highway crossing. The neglect of the railway company to observe this law and so sound the whistle and ring the bell is negligence as defined by the court in these instructions. The jury, however, is instructed that the plaintiff in this case by her complaint does not charge the defendant with failure to so sound the whistle and so ring the bell as required, but charges in substance and effect, that at the time and place of the accident the conditions were- such that the giving of the signals by whistle and bell, if given, were such that they could not be heard at the crossing in question where and when the accident occurred and that such conditions were produced by the defendant causing a freight train controlled by it to be operated
“10. In other words the last preceding instruction means that if the signals given were ineffective..
Other instructions given we do not think to be open to the objections, urged against them.
As this cause must be reversed because of the giving of the foregoing instructions,' other assigned errors need not be considered.
The judgment is therefore reversed, with directions to the trial court to sustain appellant’s motion for a new trial, and for further proceedings.