144 Ind. 323 | Ind. | 1896
The appellant sustained personal injuries at a crossing of a highway- and the appellees’
That it is the general rule that no recovery may be had for an in j'ury from negligence where the injured party, by his own negligence has contributed to the injury, is not questioned. Nor is the application of that rule in this case directly questioned, though the insistence of the appellant’s learned counsel implies, necessarily, we think, that the rule has no application where the injury results from a failure to give the statutory signals of approach to highway crossings.
Either case is distinguishable from the present in the fact that some care was exercised by the injured party, and there were attending conditions and circumstances which rendered such care more or less unavailing, while in the present case there was no care on the part of the appellant and the situation was such that slight care would have enabled him to avoid the collision.
In Cincinnati, etc., R. R. Co. v. Howard, 124 Ind. 280 (8 L. R. A. 593), it was said of the Martin case that it “is not in harmony with the earlier cases, and is out of line with those more recent,” etc. This criticism was in relation to the question of contributory negligence, and was certainly intended to deny the correctness of the contention that a reliance upon the duty of the railway company to give the signals required by law would excuse the traveler upon the highway from the duty to look and listen for trains before going upon the crossing.
There may be some doubt as to the entire justice and propriety of the criticism, since the instruction in question in the Howard case was given upon the theory that the plaintiff was required to prove that she was “without fault or negligence on her part,” and it could not, therefore, become a proper inquiry as to the force of a simple reliance upon a proper discharge of the company’s duty to give signals. When the Martin case was decided the act requiring particular signals was new, and while the decision was not in exact harmony with the earlier cases, that was because of the then new statute, and not because the traveler upon the highway had been released of all care in going upon a crossing. We do not understand the Martin case or the Harrington case, supra, to hold
The omission of the duty by the company is negligence, and if injury results proximately from that negligence, there rnay.be a recovery, if the party injured has not, by his own negligence, contributed to his injury. This doctrine has been declared and adhered to many times by this court. See Oleson v. Lake Shore, etc., R. W. Co., 143 Ind. 405; Cincinnati, etc., R. W. Co., v. Duncan, Admr., 143 Ind. 524, and in many cases cited in each. In the same cases we have adhered to the rule that it was contributory negligence for one to go upon a railway crossing without looking or listening for the approach of trains. If the only question as to such contributory negligence were the safety of the person crossing the' railway, there is good reason to favor the rule just stated. The railway is entitled to precedence in the use of the crossing, the great weight and momentum of its moving trains render it impracticable to run at a low rate of speed or to stop at highway crossings for the safety of travelers, and the known danger from collision with passing trains suggests the importance
In note 4, p. 34, 4 Am. and Eng. Ency. of Law, it is said, quoting from Langan v. St. Louis etc., Ry. Co., 72 Mo. 392; s. c. 3 Am. and Eng. R. R. cases, 355, “Contributory negligence is not imputable to a person for failing to look out for danger, when, under the surrounding circumstances, the person sought to be charged with it had no reason to suspect that danger was to be apprehended.” It is there further said: “It is also somewhat loosely said that a person is not chargeable with contributory negligence in failing to anticipate the fault or negligence of another,” citing authorities, “and that one person has a right to rely upon the presumption that another will act with due care,” citing many cases. “But these cases do not have the meaning that is imputed to them by the rule as stated. They hold either, 1st, the doctrine of the text, that it is not contributory negligence not to look
The judgment of the lower court is affirmed.