34 Ind. App. 310 | Ind. Ct. App. | 1904
Action by appellee against appellant to recover damages for personal injuries claimed to have been inflicted by one of appellant’s trains -while running on the Belt Railroad in the corporate limits of the city of Indianapolis. The amended complaint was in a single paragraph, to which a demurrer was overruled. Overruling the demurrer to the complaint and the motion for a new trial are assigned as errors.
The negligence relied upon is backing a train within the corporate limits of the city of Indianapolis, in violation of a city ordinance, which, is set out in the complaint. This ordinance requires the engine bell to be ringing when a train is running backwards within the city limits, and that a “lookout” be stationed at the rear end of such train to avoid accidents.
A brief statement of the material facts exhibited by the evidence is important before taking up the questions presented by the motion for a new trial. Appellee was a little' over seven years old. On the day he was injured he had been away from home playing with his cousins, and when injured was on his way home. To reach home he had to cross Fountain street, and when he reached said street appellant’s train was standing on the track, cut in two. From Fountain street for nearly a mile to the east, or northeast, there is a steep grade which heavy trains are unable to
The appellee introduced an ordinance of the common council of Indianapolis, making it the duty of those in charge of a locomotive to ring the bell when the same shall be running in or through said city, and providing that it shall be unlawful for persons managing a train of cars to cause the same to be run backwards, in or through the city, without providing a watchman on the rear end of such train in order to avoid accidents. There was no watchman on the
Several questions are presented by the motion for a new trial, based upon alleged errors of the court in giving and refusing to give certain instructions, and in refusing to. adroit certain evidence offered by appellant.
Appellee’s account of the manner in which he was injured is best told in his own words. He was asked the following question: “-lust tell the jury, as you were crossing the tracks, what happened to you,” to. which he answered: “Why, the train kind of gave a slack, and hacked back, and knocked me, so when I turned around one foot — my left foot — was on the track, and I kind of fell hack, and the other foot was hack of me, and I leaned back kind of, and it came back, struck it, and knocked me over.” On cross-examination he was asked, and answered the following questions : ' “When you got there and started to walk around the end of the car after you got behind it, it moved? A. It gave a slack and backed hack. It gave a slack and backed back? A. Yes, sir. What do. you mean by slack? A. Well, it just moved back a little.”
It is hardly necessary to reinarle that the purpose of the ordinance is for the better protection of life and limbs of travelers, and a guard for their safety in passing over railroad tracks. The object to be attained by the municipal authorities in the passage of such an ordinance can not he too highly commended. By cutting the train in two at the street crossing, leaving one section of it west of the street and the other section east, with a wide passageway between, was an invitation to the public to pass through. Under such facts, passengers upon the street had a right to assume that they could safely cross appellant’s track. The evident purpose of appellant in cutting the train in two at that point was to make a safe way for travelers to pass to and fro. In the language of the appellee, the train gave a “slack and hacked hack.” The evidence does not show how far it backed. It is clear, however, that it had to be backed from seven to eight feet at least to have inflicted appellee’s injury. It having moved that distance, was it run “backwards” in the city, within the meaning of. the ordinance ?
This inquiry must he answered in harmony with the purpose of the ordinance and in relation to the place. We do not believe that it is within the power or province of the court to lay down any fixed rule, and we must decide the question in the light of the facts in this particular case. The front end of appellant’s train was standing on a steep ascending grade, with its south end obstructing the north sidewalk of the street. Appellee was on that side of the street. The place was dangerous, and yet he, with other travelers, had a right to pass. A slight" movement of the train might imperil the life and limbs of one who was rightfully cross
In the oral argument of this case counsel for appellant conceded that the language of appellee, in describing th© movement of the train, might bear the construction, not only that the train gave a slack, hut also- that it moved back. The language of the boy is certainly susceptible of that construction, and, being so, it is fatal to- appellant’s position. In Lake Shore, etc., R. Co. v. Boyts (1896), 16 Ind. App. 640, it was held that backing a train of cars across a street at the rate of eight miles per hour, without sounding the whistle or ringing the hell on the locomotive, and with no one on the car to give warning, was negligence. Stoy v. Louisville, etc., R. Co. (1902), 160 Ind. 144; McWilliams v. Detroit, etc., Co. (1876), 31 Mich. 274; Robinson v. Western Pac. R. Co. (1874), 48 Cal. 409.
If it is negligence to back a train of cars across a public street at eight miles an hour without any warning or watchman on the rear, it would be negligence thus to hack it part of the wyay across. In the case before ns it is not disclosed by the evidence the rate of speed, nor the exact distance the train moved, yet, under the facts showing that it moved backwards far and fast enough to inflict the injury complained of, tire speed and distance can not be regarded as the essence of the act. We have examined the authorities
Appellant complains of instruction eight, given by the court on its own motion, and its refusal to give instructions numbered two, three and four, tendered by it. All these instructions relate to the question of appellant’s negligence as applied to the facts disclosed by the evidence. The instruction given is in harmony with, the views above expressed, and is a correct exposition of the law. Those refused are in direct conflict with what we have said on the question of appellant’s negligence, and we must hold that they were properly refused.
The particular objection urged to the instruction is that it told the jury that appellee, in the absence of some warning or evidence to the contrary, had the right to assume that appellant would obey the city ordinance, etc. In Cleveland, etc., R. Co. v. Harrington (1891), 131 Ind. 426, it was said: “In the absence of some evidence to the contrary, we think the appellee had the right to presume that the appellant would obey the city ordinance, * * * and while the wrongful conduct of the appellant in this regard would not excuse her from the exercise of reasonable care, yet in determining whether she did use such care her conduct is to be judged in the light of such presumption.” That case is in harmony with the instruction here given. See, also, Indianapolis, etc., R. Co. v. McLin (1882), 82 Ind. 435; Pennsylvania Co. v. Stegemeier (1888), 118 Ind. 305, 10 Am. St. 136.
In Chicago, etc., R. Co. v. Boggs (1884), 101 Ind. 522, 51 Am. St. 761, it was held that a traveler at a railroad crossing had a right to presume that the railroad company would obey the law. See, also, Stoy v. Louisville, etc., R. Co. (1902), 160 Ind. 144; Malott v. Hawkins (1902), 159 Ind. 127. True, the failure to ring the bell or to have a man on the rear car when the train backed did not relieve appellee
Judgment affirmed.