Baltimore & Ohio Railroad v. Talmage

43 N.E. 1019, 15 Ind. App. 203, 1896 Ind. App. LEXIS 31

• Court: Indiana Court of Appeals
• Decided: March 6, 1896
• Docket: No. 1,664
• Status: Published

Opinions

Davis, J.

The appellee recovered judgment in the court below for $1,975.00. Assuming, without deciding, that appellant is shown to have been guilty of actionable negligence in running the passenger train so close upon the engine, at a speed of forty miles per hour, which was the proximate cause of the death of said Yound, the appellant insists that the undisputed evidence clearly shows that negligence on the part of the decedent contributed to her own injury.

The material facts on this question, considered most favorably in behalf of the appellee, are substantially as follows:

At about one-half mile east of a station called Alida, in Porter county, the appellant’s railroad crosses a highway. The railroad runs due east and west, and the highway north and south, and cross each other at right angles. On the north of the railroad and west of the-highway, the view to the west, on the day of the injury, was obstructed by a high hedge fence, a barn and a house, the east side of which stood within sixty feet of the railroad track, and by a train of freight cars which stood upon a side track, which side track came within about seventy-five feet of the crossing. On the highway, eighty rods north of the railroad and from thence to the crossing, the view to the east from the highway, at all points, was unobstructed, and an approaching train from the east could be seen for a distance of two miles. On the 25th day of October, 1892, the deceased was traveling on the highway going south. She was in a top buggy drawn by a single horse. At about 5 o’clock in the afternoon of said day, she approached the crossing. The weather was cloudy and misty and considerable wind was blowing from the southwest at the time. The top of the buggy was raised and the side curtains were drarwn to protect her from the rain and wind. When she approached within 160 feet of the track, a locomotive, in charge of appellant’s servants, passed over the crossing at the rate of about thirty-five miles per hour, running from the east to the west. A passenger train was following the engine, running at about the rate of forty miles per hour and not less than one-half mile behind the engine. After the engine passed over the crossing, and without looking towards the east, the decedent drove along the highway in a walk upon the crossing, where she was struck by the engine drawing the passenger train, and killed. There was an interval of one minute between the engine and the train. It is conceded that said decedent had her faculties of seeing and hearing unimpaired; and she was familiar with said crossing and surroundings; and that had she looked to the east at any time after the first locomotive passed she would have seen the train approaching.

The general rule applicable to crossing cases and the exceptions thereto are fully discussed by Judge Gavin in the Grand Rapids, etc., R. R. Co. v. Cox, 8 Ind. App. 29.

In that case both the road and the railroad ran through cuts, so that the approaching train could not have been seen by Cox, if he had looked in that direction, until he was within thirty-five feet of the track. When he could have first seen the the train, it was less than 120 feet distant. There was then less than four seconds of time, before the collision, in which he could have seen the approaching train, if he had looked in that direction. In fact, he did look in that direction, when he was within ten feet of the track, and saw the train, then within fifty or sixty feet of the crossing.

In this case the decedent could have seen the train when she was more than one hundred and sixty feet from the track, and could have seen it at any time thereafter before she reached the crossing, if she had once looked in that direction. The train was not less than one-half mile distant when the engine crossed the highway, and there was fully one minute of time, as found by the jury, after the engine crossed the highway, in which she could certainly have seen the train, if she had at any point looked in that direction. In fact, as we understand the evidence, it clearly appears that a person on the highway, eighty rods north of the crossing, and thence all the way to the crossing, could see the train coming from the east for two miles, so that the decedent, at any time after the train came within two miles" of the crossing, could have seen it, if, at any point on the highway, within eighty rods of the crossing, she had looked in the direction of the approaching train. At any time after the engine came within a mile of the crossing she could have seen both the engine and the train if she had looked in that direction. When the first engine whistled for the crossing, the passenger train, which was a half mile behind it, was evidently within the range of her vision if she had looked in that direction.

The exception to the general rule, stated in the Cox case, has been recognized by the Supreme Court in other cases. Smith v. Wabash, etc., R. W. Co., 141 Ind. 92; Olsen v. Lake Shore, etc., R. W. Co., 143 Ind. 405 (32 L. R. A. 149); Miller v. Terre Haute, etc., R. W. Co., 144 Ind. 323.

See concurring opinion of the writer in Shirk v. Wabash R. W. Co., and authorities there cited, 14 Ind. App. 126.

In all these cases, however, the rule is recognized that the negligence of the company does not excuse the traveler approaching a railroad crossing, from exercising ordinary care.

The question is, as to what constitutes ordinary care under the circumstances of each particular case.

It is conceded that if different inferences may reasonably be drawn from the circumstances in a given case, the question of contributory negligence is for the jury-

The sole and only thing done by the company in this case, from which the inference can be drawn that the decedent Avas misled by the company in her attempt to cross the railroad, at the time she was hurt, is the fact that there was only an interval of one minute after the engine crossed the highway, before the train reached the crossing. It is not claimed that she was in any manner misled or deceived by the rate of speed of the train. All that can be claimed for her on this branch of the case is that she had the right to rely on the presumption that no train would follow the engine within one minute after the engine crossed the highway. The negligence, if any, on the part of the company, consists in running the train so close upon the engine. No statute or ordinance was being violated by the company. All the statutory signals were duly given by both the engine and the passenger train. Others, not more favorably located, heard the signals and saw the train in ample time for Mrs. Yound to have avoided the collision.

Are the circumstances in this case1 such as to warrant the inference by the jury that she was in the exercise of due care in attempting to cross the railroad without looking toward the east?

It is true, that if the facts and circumstances under which the traveler approaches the crossing are such as are reasonably calculated to mislead him, and such as would naturally create in his mind a sense of security and a belief that there is no danger, to such an extent that a man of prudence would ordinarily act upon such belief, the reason for the rule which requires him to look and listen both ways, fails. He is,, under such circumstances, entitled to the application of the exception to the general rule recognized in the Cox case.

This exception cannot be extended beyond reasonable limitations. It cannot relieve the traveler from, the exercise of due care. It only lessens the quantum of care required by the general rule. The fact that the decedent in this case may have believed that no train would follow within one minute after the engine-, did not entirely relieve her from the exercise of care-in approaching the crossing. The question remains, what was ordinary care under the surrounding circumstances? Had she the- right, simply because the engine crossed the highway, to believe that there was thereafter no danger incident to crossing the railroad track? Did the fact that she may have apprehended that the freight train standing on the switch might at once move east on the main track (although this apprehension was unfounded) across the highway, justify her in giving her constant and exclusive attention to the west? Are the circumstances such as to excuse her entirely from looking east at any time after the passenger train came in sight? If, after the passing of the engine, the time in which she could have seen the approaching train from the east had been briefer, the distance over which she traveled before reaching the crossing shorter, or the view obscured, as in the Cox case, the question would have been for determination by the jury. It should be remembered, however, that the country was level and that there was nothing to obstruct her view of the approaching train at any point, at any time, after the engine crossed the highway, or for sometime before the engine crossed the highway. After the engine crossed -the highway, she continued to drive in a walk, for tlie space of one minute and for a distance of one hundred and sixty feet, and, therefore, can it be said that she was suddenly put in such peril by the approaching train as caused her, while acting under the impulse of apparently well-grounded fear, to drive upon the track in an effort to escape from danger? Pittsburgh, etc., R. W. Co. v. Burton, Admr., 139 Ind. 357, 370; Chicago, etc., R. R. Co. v. Butler, 10 Ind. App. 244, 253; Pennsylvania Co. v. Stegemeier, 118 Ind. 305; Chicago, etc., R. W. Co. v. Hedges, Admx., 118 Ind. 5.

The whole question resolves itself into this: Had she the right, under the circumstances, to assume that no train would follow the engine until after the expiration of one minute from the time it crossed the highway, and to act on that belief or assumption without looking toward the east, either before or after the engine crossed the highway?

If the jury had the right, under the circumstances, to draw the inference that, in the exercise of due care, she was not required to look or listen for the approach of a train from the east, the court cannot interfere with their verdict on this question. If, on the other hand, the only inference that can reasonably be drawn from the undisputed facts is, that she was not in the exercise of due care when she wholly failed, after the engine crossed the highway, or after the train came in sight, to look or listen in that direction, the judgment of the trial court will have to be reversed.

It is conceded that, if she had looked in that direction, she would have seen the approaching train in time to have avoided the injury. The contention is that she was misled, by the act of the company in running the passenger train so close upon the engine, and that, by reason of this fact, the jury was warranted in drawing the inference that she was in the exercise of due care, although she did not, at any time, look in that direction.

Assuming that she had the right, within reasonable limits, to act upon the presumption that the company would not run a train so close upon the engine, she had no right, in our opinion, to wholly omit to use her sense of sight, and rely entirely upon such presumption. She should have used such opportunities as the situation afforded, to look as well as to listen, and the question is whether the space over which she traveled, was so short and the time so brief, after the train came within the range of her vision, as to entitle the appellee to submit the question of contributory negligence to the jury, when it is conceded that she did not at any time look to the east.

In the Harrington case, the Supreme Court held that where it appeared that she looked north, when within thirty-seven feet of the track, but saw no approaching train, and then, without again looking in that direction, proceeded to cross the railroad track, and was struck by an engine from the north, the question of contributory negligence was a question for the jury. Cleveland, etc., R. W. Co. v. Harrington, 131 Ind. 426.

In the Mann case, where it appeared that he looked east, when within 250 feet of the track, but saw no approaching train, and then, without looking in that direction, proceeded to cross the railroad track and was struck by an engine from the east, the Supreme Court held that the court would adjudge, as a matter of law, that he was guilty of contributory negligence. Mann v. Belt R. R., etc., Co., 128 Ind. 138. See also Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39; Cincinnati, etc., R. W. Co. v. Duncan, Admr., 143 Ind. 524.

In neither of these cases was the precise question we are here considering involved. They are cited in support of the proposition that in some cases the question of contributory negligence is for the court, and in others for the jury. The Harrington and Mann cases are similar, except as to the time that elapsed and the'distance that was traveled after the traveler, in the respective cases, looked in the direction of the approaching train, before the injury. This case and the Cox case are simliar except as to the time, distance and obstructions. In the Cox case, the time was four seconds, during which there was no obstruction, after first train crossed the highway. In this case, the time was one minute after the engine crossed the highway, and there was no obstruction. In the Cox case, the distance Avas thirty-five feet. In this case, the distance was 160 feet. In the Cox case, the highway and railroad both ran through cuts so that the approaching train could not be seen until plaintiff Avas within thirty-five feet of the crossing. In this case, there was no obstruction, and the approaching train could be seen all the time after decedent came within eighty rods and the train within two miles of the crossing. In the Cox case, one train followed another train without giving the statutory signals, with an interval of only twelve seconds between them. In this case, a train giving the statutory signals followed an engine entering a station, with an interval of fully one minute between them.

We reaffirm the principle on which the Cox case is decided, and fully approve of that decision, but in our opinion there are material, strong and clear distinctions between that case and this. In this case, the injured party had ample time and opportunity to look in both directions, after as well as before the engine crossed the highway, and before she came into dangerous proximity to the railroad. The engine which crossed the highway in front of her was approaching the station, and no train or car was attached thereto. The distance she was from the track; the rate of speed at which she was going; the fact that the engine was alone; her unobstructed view of the railroad to the east, in connection with all the surrounding circumstances, would have suggested to her that, in the exercise of ordinary care, she should have looked, at least once, in the direction from which the engine came, after, if not before it crossed the highway, to see whether it had become detached from or was being followed by a train.

Filed March 6, 1896.

The presence of an engine on a railroad does not ordinarily lead to the inference that there is no train or car to which it belongs, or another train following it in the near vicinity. If a lone engine approaching a. station is unusual, the greater reason would exist why the traveler, who knew that it was unusual, should exercise ordinary care in approaching the crossing, on account of such circumstances. The decedent had lived for twenty years within 250 feet of the railroad. She was familiar with the crossing, and passed over it frequently. In any view that may be taken of the clear and undisputed facts and circumstances in this case, it appears to us that the court should have adjudged, as a matter of law, that the. decedent was not in the exercise of due care at the time she was injured. On the contrary, it occurs to us that slight care on her part would have enabled her to avoid the collision.

Judgment reversed, with instructions to sustain appellant’s motion for a new trial.