52 Ind. App. 59 | Ind. Ct. App. | 1912
Lead Opinion
Appellee brought this action, by his next friend, for damages resulting from an injury to appellee alleged to
The first error assigned and relied on by appellant is that the court erred in overruling the demurrer to the complaint.
The complaint, in substance, avers that appellant’s double-track railroad crosses a street in the business center of Waterloo; that said crossing was used by many people, both on foot and in vehicles; that it was a dangerous crossing, and was so recognized by appellant; that on the evening of April 4, 1908, appellee was at said crossing, waiting to cross said railroad as soon as one of appellant’s west-bound freight-trains had passed; that said west-bound freight was closely followed by another train on the same track; that when said freight had passed, appellee, without warning or notice of the approach of another train, attempted to cross, and was struck by an east-bound train, and injured.
'It is then charged that appellant was negligent (1) in not maintaining a flagman at said crossing during the evening, (2) in failing to keep said crossing lighted, (3) in running a second train in such close proximity to said west-bound freight as to divert appellee’s attention from danger on the other track from a train running in the opposite direction, (4) in negligently failing to give the statutory or any other warning of the approach of said east-bound train, and (5) in running said train over said crossing at night at a dangerous rate of speed of twenty miles an hour.
The substance of the jury’s finding in its answers to interrogatories is as follows: Appellee was injured about 8 o’clock p. m. on April 4, 1908, by being hit by an eastbound freight-train on the north main track of appellant’s railroad, at the crossing of said railroad and Wayne street, one of the business streets of the town of Waterloo; that said train was running at a spded of about twenty-five miles an hour; that at said crossing there were two main tracks, and two side-tracks south of the main tracks; that said crossing was much used by the people of the town and surrounding country; that the night of April 4, 1908, was a dark night, and said crossing was not so lighted that the north track could be seen for any considerable distance on such a night while a train was passing over said crossing on the south track; that just prior to the injury, appellee stood on the south side of a west-bound train on the south track waiting for said train to pass so he could cross over to the other side; that he looked and listened for a train from the west, and continued so to do until he started to go across the tracks, which he did as soon as the caboose of the west
His position on the south track was one of danger, and we cannot say, as a matter of law, that he was negligent, under the circumstances, in attempting to cross the north track. He was not bound to wait until absolutely certain that no train was approaching the crossing, but to use ordinary care in attempting to cross. There is nothing in the answers to interrogatories which is irreconcilable with the jury’s finding in the general verdict, that he did use such care. Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 149, 66 N. E. 615. In the case of Dieckman v. Louisville, etc., Traction Co. (1910), 46 Ind. App. 11, 89 N. E. 909, 91 N. E. 179, speaking of a situation similar to that in the present ease, this court, at page 17, said: ‘ ‘ If one acts naturally in a case of sudden and instant peril, put on him by another, and is injured, he is not guilty of negligence, although afterwards, out of the presence of danger, with time to reflect, and in the light of all known facts, it may appear that another course of conduct might have led to his escape.” To the same effect are the following cases: McIntyre v. Orner (1906),
Dieckman v. Louisville, etc., Traction Co., supra, and Cleveland, etc., R. Co. v. Miles, supra, are similar in principle and in their main facts to the case at bar, and the important and controlling questions raised by appellant in this case are fully answered by those decisions, adversely to appellant’s contention. The Dieckman case also distinguishes the line of eases relied on by appellant from those applicable in that and in this case, making it unnecessary for us again to discuss in detail such propositions.
Objection is made both to instructions given and to the refusal of the court to give certain instructions tendered by appellant. The instructions given were quite as favorable to appellant as the law will warrant. Those refused all center around the proposition that the jury should have been told that appellee was guilty of contributory negligence as a matter of law, and to propositions having to do with the town of Waterloo and appellant.
We find no error harmful to appellant in relation to the instructions given or refused. Neither was there any harmful error in the admission or exclusion of evidence as shown by the record.
Judgment affirmed.
Rehearing
On Petition for Rehearing.
Appellant, in its petition for a rehearing, insists with much zeal that the court in the original opinion failed to give a sufficiently full and accurate statement of the facts on which to base an opinion and failed to consider in detail some questions presented by the briefs and record.
In view of the character of the questions urged we have with much care reexamined the several questions presented. With reference to the facts found by the jury in answer to interrogatories, in addition to the statement in the original opinion, the finding shows that the crossing where the injury occurred was at the business center of the town, which had a population of about 1,200; that appellant kept a flagman at said crossing from 6 o’clock a. m. to 6 o’clock p. m., but not after that hour; that there was much travel at said crossing after 6 o ’clock p. m.; that the train which struck plaintiff was ‘ ‘ a pick-up stock train, ’ ’ running on an irregular schedule; that appellee saw the second train approaching on the south track from the east at the time he started to cross the track; that he proceeded across the tracks at the rate of six or eight miles an hour, and it would have required about five seconds for him to cross over; that he did not hear any warning call until he 'reached and was passing over the north track; that appellee would not have heard the bell ringing in time to avoid the collision had it been ringing; that he could have heard the whistle in time to avoid the collision, had it been sounded a short distance west of the crossing; that the noise of the train on the sbuth track prevented appellee from hearing the approach of the train from the west; that after appellee advanced far enough to have seen the train approaching from the west, to escape a perilous position without crossing over the north track he
Appellant contends that the answers which show that appellee did not look west after he started across the track, and that if he had looked to the west when at the north rail of the south track, or when four feet south of ‘the south rail of .the north main track, he could have seen the train approaching which struck him, show that appellee was negligent in attempting to cross.
In this case the complaint alleges that as appellee started to cross in the rear of the caboose he saw the second train approaching from the east in such close proximity that his attention was diverted and centered on that train, and he did not see the train approaching from the west. The jury found that the train which struck him was a “pick-up” running on irregular time; that the noise of the passing train prevented his hearing the approach of the train on the north track; that he looked and listened for a train from the west before starting to cross; that he could have heard the whistle if it had been sounded for the crossing, and it
It is also contended that the court erred in giving instruction No. 3, at the request of appellee, and in refusing to give instruction No. 6, tendered by appellant. The instruction given told the jury, in substance, that appellant was guilty of negligence per se if the whistle of the engine that struck him “was not sounded within eighty rods” of the crossing and the bell was not rung continuously from a point eighty rods west of the crossing.
The one refused is as follows:
“The statute of the State of Indiana requiring engines to be equipped with whistle and bell, and the whistle to be sounded and the bell rung on approaching a crossing does not apply to streets in an incorporated town. ’ ’
The court in the fourth instruction, given at appellee’s request, in effect, told the jury that if it found the conditions'relative to the crossing and the operation of appellant’s trains to be as alleged, and that the sounding of the whistle and the ringing of the bell, as required by the statute, were not on its part the exercise of reasonable and ordinary care, and that such care required the presence of a watchman at the crossing at the time óf said injury, and appellant failed so to maintain a flagman at the crossing, and appellee’s injury was caused by such failure, he could recover, if himself free from contributory negligence. The theory of the instruction seems to be that under certain conditions, to be determined by the jury from the evidence, compliance with the statute would not absolve . appellant from actionable negligence, and to free itself from liability it may, under such peculiar and exceptional conditions, be required to do something more than comply with the statute, or with an ordinance duly passed, and authorized by statute. This doctrine is recognized in some of the states, but we do not feel called on to determine the question in this case. New York, etc., R. Co. v. Leaman (1891), 54 N. J. L. 202, 23 Atl. 691, 15 L. R. A. 426 and notes; Lathan v. Staten Island R. Co. (1907), 150 Fed. 235.
It is not contended by either party that the town had passed an ordinance requiring appellant to keep a watchman at the crossing where the accident occurred. The duty so to do, if it existed, arose because of the conditions at the
The trial court evidently held the law to he that it was proper to submit to the jury, as a question of fact to be determined from the evidence, whether, under the conditions shown, ordinary care on the part of appellant required the presence of a watchman at the crossing.
Instruction No. 4, given by the court, and instructions Nos. 7, 28 and 29 refused, all relate to the question of liability, and since that is shown by the special finding of facts to be fixed by reason of appellant’s failure to give the statutory warnings on approaching the crossing, it was not harmed by instructions which relate solely to the question of liability for failure to maintain a watchman at the crossing. They did not add to appellant’s burden or make it more liable than was otherwise proven, even if erroneous.
The sixth instruction given by the court and the eighth and ninth requested by appellant and refused were solely on the question of liability with reference to the lighting of the crossing. The error, if any, in the giving and refusing
In Elliott, App. Proc. §642 it is said: “If the answers of the jury to special interrogatories clearly show that the party suffered no substantial injury from a wrong instruction, there is no available error.”
In Cleveland, etc., R. Co. v. Newell (1885), 104 Ind. 264, 272, 3 N. E. 836, 54 Am. Rep. 312, it is said: “Without regard to whether the instruction complained of was in all respects technically and verbally accurate, since it appears from the answers to the special interrogatories that the jury found that the defendant was, in respect of the matters already alluded to, negligent, the error in the instruction, if there was any, was harmless. ’ ’
The principle underlying the doctrine of harmless error has been applied in many ways. Where the record, as in this case, shows clearly that the error, if any, did not harm the complaining party, the judgment will be affirmed, notwithstanding such error. Elliott, App. Proc. §§631-652; Tracewell v. Farnsley (1886), 104 Ind. 497, 4 N. E. 162; McFadden v. Schroeder (18.94), 9 Ind. App. 49, 52, 35 N. E. 131; Cline v. Lindsey (1887), 110 Ind. 337, 341, 11 N. E. 441; Ellis v. City of Hammond (1901), 157 Ind. 267, 271,
Furthermore, the record shows clearly that the main controversy in the trial of this ease was over appellee’s alleged contributory negligence.
Appellant tendered 29 instructions, and the court gave 22 of them, and in all 35 instructions. The instructions, taken as a whole, were favorable to appellant. On the subject of appellee’s contributory negligence, those given at appellant’s request not only covered every phase of the question applicable to the case, but repeated and reiterated similar and kindred propositions relating to appellee’s alleged contributory negligence in such a way as to give undue prominence to the subject and obscure other questions of equal importance.
The special finding of facts on the question of appellant’s negligence makes it plain that upon the material and controlling questions of the ease the instructions were as favorable to appellant as the law will warrant and were so adroitly presented as to save to appellant every possible advantage.
The petition for a rehearing is therefore overruled.
Note. — Reported in 98 N. E. 654, 100 N. E. 313. See, also, under (1) 29 Cyc. 565; (2) 29 Cyc. 587; (3) 33 Cyc. 1053; (4) 29 Cyc. 628; (5) 33 Cyc. 956; (6) 33 Cyc. 1142; (7) 38 Cyc. 1927; (8) 38 Cyc. 1926; (9) 33 Cyc. 986, 1111; (10) 33 Cyc. 922; (11) 33 Cyc. 958; (12, 14) 33 Cyc. 1143; (13) 38 Cyc. 1646; (15) 3 Cyc. 387; (16) 38 Cyc. 1411. As to the duty of travelers on highways to use senses to avoid accidents at railroad crossings) see 90 Am. Dec. 780.
