| Ind. | Nov 15, 1880
— The complaint in this case was'in two paragraphs.
The first averred that the defendant, the Pennsylvania
The second was much like the first, except that it averred that the defendant was operating 'the Pittsburgh, Fort Wayne and Chicago Railroad, and that the planks on the side-walk on the east side of Hanna street, where the plaintiff' had to cross, and between the rails of the railroad tracks, had been carelessly laid and were out of repair; that for that reason, and in consequence of the whistle not being sounded, nor the bell rung, and there being no watchman at the crossing, the plaintiff' did not see the approaching train until she fell down, and it struck her as above stated.
A jury returned a general verdict for the plaintifi, for seven thousand five hundred dollars, together with answers to numerous special interrogatories submitted to them at the request of the parties respectively.
The defendant moved for a judgment in its favor upon the answers of the jury to the special interrogatories, but that motion was overruled. Motions for a new trial and in arrest of judgment were also successively overruled, and judgment was rendered against the defendant upon the general verdict.
It is claimed on behalf of the appellant, that the demurrer ought to have been sustained to the second paragraph of the complaint, but in our estimation no valid objection to that paragraph has been shown.
The facts of this case, as they were made to appear on the trial, may, in general terms, be stated as follows:
On the evening of October 30th, 1876, the appellee, who lived with her parents south of the appellant’s railroad, and who was attending school north of that road, and was then about eight years old, was passing over the railroad on the east side of Hanna street, in the city of Fort Wayne, on her return home from school. There were seven or eight tracks or side-tracks belonging to the road and running near to, and generally parallel with, each other, across Hanna street at that point. When the appellee, in her attempt to cross the railroad, had reached perhaps the fifth track, counting from the north, she was struck by a train of ears, consisting of an engine, a tender and two box-cars, then being slowly backed over Hanna street from the west, and one of her legs was thereby so broken and crushed that it had to be amputated. The erossing was necessarily a somewhat dangerous one. There
The appellee introduced evidence tending to show that the whistle of the locomotive, attached to the train which injured her, was not sounded as the train approached the Hanna street crossing.
The appellant, in defence, offered to read in evidence an ordinance of the city of Fort Wayne prohibiting the sounding of a locomotive whistle during the ordinary transportation of trains through that city, hut the court, over the exception of the appellant, refused to permit the proposed ordinance to be read.
No satisfactory reason for the exclusion of the ordinance thus offered in evidence has been suggested, and we confess our inability to recall any principle ou which its exclusion can be defended, in view of the appellant’s alleged failure to sound the whistle, contained both in the complaint and in the appellee’s evidence.
The concluding portion of the third instruction, given in this case to the jury at the request of the appellee, was as follows:
“You may also inquire whether or not the city of Fort Wayne had, by an ordinance, required the defendant to keep a flagman at said crossing, to notify persons of the. approach of cars' and engines to said crossing, and warn them of danger ; for, if there was such an ordinance, then the defendant could not fail or neglect to comply with its requirements, without being guilty of negligence.”
The appellant sharply criticises as much of the instruc
The force and effect of a city ordinance regulating the running and management of railroad trains, within the limits of the city, upon a civil action against a railroad company, like the case before us, is a question upon which the authorities are not entirely in accord. But the weight of authority is overwhelmingly to the effect that the failure to perform any duty imposed either by a statute or an ordinance is negligence per se, and entitles an injured party to recover, provided the failure was a proximate cause of the injury. Thompson Negligence, 419,1232; Shearman & Redf. Negligence, secs. 484, 485.
Therefore, to have made the third instruction, given as above, properly and strictly applicable to this case, the jury ought, also, to have been informed by it in some way, that, to entitle the appellee to recover for a failure to comply with the ordinance referred to, such failure must be shown to have been a pi’oximate cause of the injury complained of.
The appellee contends that a fair construction of the two preceding instructions, when taken in connection with this third instruction, did so inform the jury, but whether that construction can be sustained, we will not now en-quire, as the conclusion we have reached upon the case in other respects makes such an enquiry at present unnecessary.
One thing, however, in this connection, ought always to be borne in mind, and that is, in all actions for negligent injuries, it is not enough to show that the defendant has been guilty of negligence. It must also be made to appear that the imputed negligence was a proximate cause of the injury sued for. Tljat fundamental rule seems to have been, to some extent at least, lost sight of in several of the instructions given in this cause.
“ If you find from the evidence that the train that struck the plaintiff, if one did strike her, consisted of two cars and an engine; that the two ears were being backed over the street; that there were no brakes or brakemen on the front car as it passed over the crossing, and po one in advance of the cars; that no bell was rung as the train was backing over the street; that the crossing was in a populous part of the city and much frequented by people continually passing over it — then you should find the defendant guilty of negligence.”
The facts enumerated in this instruction may or may not have constituted negligence, depending upon other facts which may have had some relation to the alleged injury to the appellee. As au instruction, it confounded that which, under the circumstances, only tended to prove negligence, with negligence itself. It assumed to make a matter of law out of facts which the jury were entitled to consider in connection with other facts which had been submitted to them.
The cases in which the question of negligence can be thus withdrawn from the jury are of comparatively rare occurrence. It is only when the circumstances of a case are such that the standard of duty is fixed aud certain, or when the measure of duty is defined by law and is the same under all circumstances, or when the negligence is so clearly defined and palpable that no verdict could make it otherwise, that the court is authorized to make the question of negligence one of law and not of fact. Thompson Negligence, 1236; Shearman & Redfield Negligence, sec. 11,
The court evidently erred in giving this sixth instruction.
This ease affords a rather remarkable instance of what
The j udgment below is reversed, with costs, and the cause remanded.for a new trial.