Chicago, St. Louis & Pittsburgh Railroad v. Butler

38 N.E. 1, 10 Ind. App. 244, 1894 Ind. App. LEXIS 142

• Court: Indiana Court of Appeals
• Decided: June 19, 1894
• Docket: No. 831
• Status: Published

Opinions

Davis, J.

The appellee recovered judgment against appellant in the court below for three thousand dollars on account of personal injuries. With their general verdict the jury returned answers to a large number of interrogatories. The errors complained of are predicated upon the action of the trial court in overruling the demurrer to the complaint, the motion for judgment upon the answers by the jury to the interrogatories, the motion for a new trial, and in rendering judgment in favor of appellee upon the general verdict.

The ruling of the court on the demurrer to the complaint is the first question discussed. The complaint, omitting the formal allegations, charges, in substance, that the appellant’s railroad crosses the national road in the village of Raysville, Henry county, at an angle of about thirty degrees, at or near the center of Raysville; that the national road at this point is about eighty feet wide, and Raysville contained a population of about 300; that the highway runs east and west through the town, and the railroad runs northeasterly and southwesterly; that on the north side of the highway, and east of the crossing, there were a large number of dwelling houses and buildings obstructing the view of the railroad track to the east; that the railroad, east of the crossing, curves to the east, and the view is obstructed by hills, etc.; that two other highways cross the railroad, one on either side of the national road crossing, and 400 feet therefrom; that on the 22d of December, 1888, appellee, with one John E. Keyes, was returning from church, east of Rays-ville, and, upon invitation of Elijah Applegate, they rode with him from the church, intending to go to Knights-town, where the parties all resided; that they were riding in an ordinary covered spring wagon, with one seat, and drawn by one horse; the plaintiff was seated with the driver, on the same seat, and was facing in the direction in which they were traveling, Keyes being seated between plaintiff and Applegate, facing the rear of wagon; that in this situation they approached the railroad crossing; that when about one hundred feet from the crossing Applegate checked his horse to a slow walk, and he and plaintiff looked and listened, with due care and diligence, for approaching trains, but neither saw nor heard any train approaching, and no trains were then due; that thereupon Applegate drove the horse upon and over the crossing, and just as the wagon passed over the track the appellant’s servants negligently, and without giving any signal, ran a through mail train, at the rate of fifty miles an hour, over said crossing, from the east, and as the engine passed the horse, running almost parallel with the course in which he was going, appellant’s servants negligently and maliciously opened the side valves of the engine, thereby causing a great vapor of steam and smoke to escape with a loud, hissing and frightening noise, which, combined with the noise of the train, created a perfect tumult of noise and confusion, “and the plaintiff expressly avers that the defendant did not, nor did any of her servants, agents or employes in charge of said train, or otherwise, sound any whistle or ring any bell within three quarters of a mile of said crossing while approaching thereto, but, on the contrary, he avers that she, by her servants as aforesaid, did, in a most careless and negligent manner, run said train of cars out of time into and through said place where people were constantly passing and repassing at the unusual high rate of speed aforesaid, upon a down grade, without sounding any whistle or ringing any bell within three fourths of a mile of said crossing; that had any signal been given, the plaintiff and said Applegate could and would have heard the same, and the injury could and would have been avoided,” and by reason of the negligent and careless acts of the appellant, by its employes aforesaid, .the said horse, though perfectly gentle and docile, became greatly frightened and unmanageable, and ran away; that the driver, in attempting to control the horse, broke the bridle bit, and the horse then being beyond control, and running in the direction of a large number of locust shade trees standing upon the side of the street, a short distance ahead of him, the appellee, to avoid a collision with the trees, and the danger therefrom, which seemed to him at the time imminent and unavoidable, attempted to leap from the wagon, and falling upon the ground received bruises and injuries to his shoulder and arms, for which he sues and demands judgment; that the injury resulted wholly from defendant’s negligence, and without any fault of plaintiff.

It is insisted by counsel for appellant that the purpose of the pleader was to rely upon the common law action of negligence in causing the escape of the steam, and thereby causing the horse to take fright and run away, and that the allegations as to the failure by appellant’s servants to give the statutory signals, were for the purpose of showing that the appellee was not in fault in bringing him in close proximity to the passing train, and were not stated as the basis of a cause of action under the statute. On this theory the contention is that the complaint is not sufficient. We do not concur with the views of counsel for appellant as to the theory of the complaint. In our opinion, the complaint proceeds upon the theory that the appellant negligently failed to give the statutory signal, by reason of which the appellee, in the exercise of due care, was placed in a position of danger, and that by reason of such negligence and the noise of the train and the escape of steam, as concurrent acts and circumstances, the horse became frightened and the appellee was injured. On this theory the complaint is sufficient. Louisville, etc., R. W. Co. v. Davis, 7 Ind. App. 222.

The second and third assignments of error, that the court erred in overruling appellant’s motion for judgment in its favor on the answers of the jury to the interrogatories, and in rendering judgment for appellee, we will consider together.

The interrogatories which were submitted at the request of the appellant, and the answers of the jury thereto, are as follows:

“1. Was plaintiff injured through the negligence of any of defendant’s agents or servants? If so, state specifically what act of negligence, and by whom committed; state all.

"Ans. Yes; by neglecting to sound proper signals by defendant’s agents or servants in charge of train.

“2. State whether or not the whistle was blown upon defendant’s train prior to approaching said crossing, and if so, how many times, and where at each time.

“Ans. Yes. The whistle was blown once, at some point beyond Pritchard’s crossing.

“3. If plaintiff had heard the signal from defendant’s train before he went on the crossing, could he have avoided the injury?

“Ans. Yes; if given as law directs.

“4. If plaintiff had seen defendant’s approaching train before going upon the crossing, could he have avoided the injury?

“Ans. No.

“5. How far eastwardly from the crossing where the accident complained of took place would a traveler on the National road have to go before he would meet any obstruction which would prevent his seeing the train approaching from the northeast along defendant’s track?

“Ans. Ninety feet.

“6. How far up the track toward the northeast could he see an approaching train before he came to those obstructions? Could he not see more than half a mile?

“Ans. 1st. About a third of a mile. 2d. No.

“7. From a point in the middle of the National road, 108 feet east from the center of the crossing, could not a train coming from the northeast along defendant’s road be seen at all points within 3,100 feet of the crossing, at the time of the accident complained of?’

“Ans. No.

“8. Could not such train be so seen from all places in the National road between the crossing and this point 108 feet distant therefrom?

“Ans. No.

“9. From a point in the middle of the National road, 80 feet east from the crossing, could not a train coming from the northeast along defendant’s road, be seen at 3,100 feet of the crossing, at the time of the accident?

“Ans. No.

“10. Could not such train be seen from all points on the National road, between the crossing and this place, 80 feet distant therefrom?

“Ans. Yes.

“12. Was the plaintiff acquainted with the character of the crossing at which the accident occurred, and the approaches thereto?

“Ans. Yes.

“13. Did plaintiff believe said crossing to be a dangerous one?

“Ans. Yes.

“14. At what hour of day or night did the accident occur ?

“Ans. Two o’clock p. m.

“15. At what rate of speed did plaintiff approach the crossing from a point 100 feet east of it?

“Ans. Part of the time in a walk and part of the time in a slow trot.

“16. At what rate of speed did defendant’s train approach the crossing?

“Ans. Fifty miles per hour.

“17. What did the plaintiff do to avoid the accident and injury resulting from it? State all that he did, and where each thing was done.

“Ans. 1st. He engaged in conversation with those in the wagon as to the possibility of a train being due when at Brando road. 2d. He used his eyes and ears from this point to the crossing, then, at the crossing, he told Applegate to watch his horse.

“18. Did plaintiff, at any time, when approaching the crossing, request the driver of the wagon in which he was riding to stop; if so, when?

“Ans. No.

"19. In approaching the crossing, was not the steam shut off from the cylinder of defendant’s engine?

"Ans. No.

"20. Could steam escape from the cylinder of defendant’s engine, so as to make a loud and hissing noise, when the steam was shut off from such cylinder?

"Ans. No.

"21. Was defendant’s track at the crossing a single or double track?

"Ans. A single track.

"22. If plaintiff had seen defendant’s approaching train while he was approaching the crossing, and was 100 feet distant therefrom, could he have avoided the accident?

"Ans. Yes.

"23. If plaintiff had seen defendant’s approaching train while he was approaching the crossing, and was still 80 feet distant therefrom, could he have avoided the injury?

"Ans. No.

"24. If plaintiff had seen defendant’s approaching train while he was still 50 feet from the crossing, could he have avoided the injury?

"Ans. No.

"25. If plaintiff had seen defendant’s approaching train while still 30 feet distant therefrom, could he have avoided the injury?

"Ans. No.

"26. Was not plaintiff, at the time of the accident, in full possession of his senses and faculties unimpaired ? If not, state in what respect.

"Ans. Yes.

"27. Was not the day of the accident a clear, mild winter day? If not, what kind of a day was it?

"Ans. It was a mild winter day.

“28. 'While plaintiff was approaching the crossing, and before the horse attached to the vehicle in which he rode went upon the crossing, how many feet distant from the crossing was he when he last looked toward the northeast along defendant’s track for an approaching train?

“Ans. Eight or ten feet.

“29. From a point in the middle of the National road, 80 feet east from the center of the crossing, could not a train coming from the northeast along defendant’s track be seen at all places within half a mile of the crossing, at the time of the accident? And could not such train be seen from all places in the National road between the crossing and this place 80 feet distant therefrom?

“Ans. 1st. No. 2d. Yes.

“30. State whether or not a train approaching from the east could be seen by a person upon said highway 255 feet east of the crossing of the said highway and said railroad? And if so, for what distance east of said crossing upon said track said train could be seen?

“Ans. 1st. Yes. 2d. About 1,700 feet.’’

The position of counsel of appellant is that the answers of’the jury to the interrogatories conclusively show that appellee was guilty of negligence in approaching the crossing which contributed as a proximate cause to the injury. In this connection it is urged that many of the findings are statements of conclusions drawn by the jury.

It is conceded that such answers are responsive to the questions, and if the answers are statements of conclusions, such conclusions have been elicited at the instance of the appellant. Disregarding, however, all the statements that can be construed as conclusions, it should be remembered that answers to the interrogatories override the general verdict only when both can not stand together, that is to say, when the antagonism is such, upon the face of the record, as is beyond the possibility of being removed by any evidence legitimately admissible under the issues in the cause. Lockwood v. Rose, 125 Ind. 588 (594).

The contention of counsel for appellant is that the answers to the interrogatories show that the appellee, in approaching the crossing and in passing over the entire distance of eighty feet before going upon the crossing, had a clear and unobstructed view of the track in the direction from which the train was coming for a third of a mile, and, therefore, they insist that the conclusion is irresistible that he was chargeable, as a matter of law, with contributory negligence. The general verdict, as we have seen, finds every material fact, in issue, necessary to a recovery in behalf of appellee, in his favor. The effect of this verdict is that the negligence of appellant has been established, and also that the injury was occasioned without fault on the part of appellee. This verdict is to stand unless the answers to the interrogatories are so in conflict with it that it can not be sustained by any possible evidence that was legitimately admissible in the case under the issues. The appellee was riding in the wagon as the guest of Applegate. No train was then due. The train was being run out of time at a speed of fifty miles an hour without giving any of the signals for the crossing as required by the statute. When eighty feet east of the crossing, appellee was nearer to the railroad track north of that point than he was to the crossing. During the time they were approaching the crossing from this point, appellee engaged in conversation with those in the wagon as to the possibility of a train coming at that time, also used his eyes and ears, and told Applegate to watch his horse. In the exercise of due care, appellee was required to look and listen in both directions for approaching trains, but he could not look both ways at the same instant. He was not required to give his sole attention in one direction. The position of appellee and the location of the train at the time when, in the exercise of due care, appellee should have first seen the approaching train does not appear. If the train was seen by appellee when he was within less than eighty feet from the crossing the course to be pursued had to be determined instantly. With the train coming behind and to the right of them, the question was whether they should stop on the east side of the track or cross the track in front of the train to the west side, or attempt to get out of the way in some other direction. It appears that the parties, including appellee, did cross the track before the train reached the highway crossing.

Now, in what respect can the court adjudge as a matter of law, under the rule applicable in such cases as hereinbefore enunciated, on the answers of the jury to the interrogatories, that appellee was on this occasion guilty of negligence which contributed as a proximate cause to the injuries he sustained. What, in the exercise of ordinary care, can the court say he should have done that he did not do, or that he should not have done that he did do? We do not know that he would have been in any better or safer position, or that the horse would not have been frightened and the injuries sustained, if the horse had been stopped or an attempt had been made to avoid the danger in some other manner.The principles applicable to this case are fully and clearly stated in a recent decision of the Supreme Court. Pittsburgh, etc., R. W. Co. v. Burton, 37 N. E. Rep. 150.

The reasoning of Judge Hackney in that opinion is decisive of the question now under consideration. See, also, Terre Haute, etc., R. R. Co. v. Brunker, 128 Ind. 542.

It is next insisted that the evidence is insufficient to sustain the verdict. If it were conceded to be true, as contended by counsel for appellant, that appellee, in the exercise of ordinary care, ought to have seen the approaching train when he was within fifty feet of the crossing, does the conclusion inevitably follow that he was guilty of contributory negligence in crossing the railroad track? The appellee had the right to use the highway crossing. He also had the right to presume that appellant’s servants in charge of any approaching train would give the statutory signals before reaching the crossing. If, in the exercise of prudence and caution in proportion to the peculiar hazards incident to this crossing, he did not discover the train until he was in a perilous position we are not prepared to say that without time for reflection he ought to have adopted some other course in his efforts to get out of danger. There is evidence, in our opinion, fairly tending to support the verdict on every material point in issue.

It is also insisted that the third instruction given by the court is erroneous. The substance of this instruction is that if appellant’s employes sounded the whistle and rang the bell, as required by law, yet if the engineer unnecessarily opened the side valves of the engine when it was likely to frighten the animal, etc., the appellant would be liable. This instruction does not correctly state the law applicable to the case.

It is conceded, however, by counsel for appellant, that the answers to the interrogatories conclusively show that the only acts of negligence on which the verdict is based is the failure to sound the proper signals. In this view of the case the instruction was harmless.

In other words, the jury expressly find that the facts, on which the court erroneously instructed them they might find appellant liable, did not exist.

Counsel for appellant also earnestly contend that the court erred in giving the jury the eleventh instruction.

It is alleged in the complaint, “that by reason of said injury his ability to practice his profession or follow any other pursuit in life has been greatly impaired, his shoulder has been permanently injured, he has suffered great pain of body and mind, has expended one hundred dollars in attempting to cure himself, has lost a large amount of time, and has been otherwise damaged,” etc.

The eleventh instruction is as follows: “If you find for the plaintiff, you will assess to him such damages as you in your judgment determine will compensate him for the injury sustained. And, in determining the amount of same, you will consider the nature and character of the injuries received by him, if any; any pain and suffering he may have endured in consequence thereof, either in body or mind; whether his injury is permanent or otherwise; loss of time occasioned thereby; expenses of curing, or attempting to cure, himself; any inability to labor or engage in his usual avocation; and all facts and circumstances in evidence tending to show the injury he has sustained, and upon the whole case award him such just sum in damages as will fully compensate him for the injury received, if any.”

It is not claimed that the instruction is not a correct statement of the law as a general rule. The only objection urged to the instruction is based on the proposition that there is no evidence in the record tending to show that appellee had incurred any expenses in curing, or attempting to cure, himself, or the value of any time lost by him. The position of counsel is that there is no evidence which would enable the jury to fix any damages for loss of time or for expenses.

There is evidence in the record showing that appellee sent for one physician, who examined him twice on different occasions, and also gave him some treatment for his injuries; also, that he called once on another physician, who examined his injuries.

It also appears that appellee was an attorney at law, engaged in the practice of his profession; that his shoulder was seriously injured, and that he was severely bruised on his side; that he was confined to his house for four days; that his shoulder continues stiff and that he is unable to use it; that he can only write a few minutes at a time, and that his arm then becomes numb and useless, and that the disability interferes with the practice of his profession.

It is true there is no direct evidence as to the value of the time lost by appellee, occasioned by the injury. It would undoubtedly have been competent for appellee to have proved, if properly alleged, the value of his time during the period he was disabled by the injury. Carthage Turnpike Co. v. Andrews, 102 Ind. 138.

The value of the time lost is not referred to in the instruction. The jury are told that in determining the amount of damages they will take into consideration the fact whether loss of time was occasioned thereby, but they were not instructed that they should allow anything for the value of such lost time. It was proper for the jury to consider the nature and extent of appellee’s injury, his mental and physical suffering and the impairment of his ability to follow his usual vocation, although there was no direct proof as to the amount of such damages. In these respects the instruction properly enunciates the elements which the jury might consider in estimating the damages. City of Indianapolis v. Scott, 72 Ind. 196; Indiana Car Co. v. Parker, 100 Ind. 181; Louisville, etc., R. W. Co. v. Falvey, 104 Ind. 409.

It occurs to us that under the circumstances of this case, as disclosed by the evidence, the fact as to whether his injuries were such as to cause him to lose time by being confined to his house for four days was an element proper for the jury to consider. When the instruction is considered in the light of the issues and the evidence the jury, in our opinion, could not have been misled by the charge into the supposition that they should allow anything in the nature of special damages for the value of the four days he was confined to the house.

The other question is more difficult. It is expressly alleged in the complaint that appellee "has*expended one hundred dollars in attempting to cure himself.” The jury were instructed that in determining his damages they should take into consideration the "expenses of curing, or attempting to cure, himself.” No effort was made, on the trial, to prove the amount of such expenses, except such inferences as might be drawn from the services shown to have been rendered by the physicians.

In the caseof Duke v. Missouri Pacific R. R. Co., 41 Am. and Eng. R. R. Cas., p. 221, the Supreme Court of Missouri, speaking upon the precise question here involved, say: "There was an entire failure of proof as to the allegation in the petition that the plaintiff expended a large sum of money for professional services of physicians and nurses, and for drugs, under the most liberal construction that can be placed upon it; and it was error in the court to instruct the jury as if there was evidence in the case in support of that averment. Instructions must be confined to the case made by the evidence within the issues, ‘defined by the pleadings.’ ” 2 Thompson Trials, p. 2309; White v. Chaney, 20 Mo. App. 389; Waddington v. Hulett, 92 Mo. 258; Lester v. Kansas City, etc., R. R. Co., 60 Mo. 265.

Where there is no evidence showing the amount or the approximate amount of expenses incurred for medicines, medical attention, or like services, the jury have no basis upon which to form an estimate of the damages that ought to be assessed on account thereof, and damages of this kind can not be found except upon such proof. Reed v. Chicago, etc., R. Co., 57 Iowa, 23; Eckerd v. Chicago, etc., R. W. Co., 70 Iowa, 353; Crowley v. St. Louis, etc., R. W. Co., 24 Mo. App. 119; 2 Shear, and Redf. Neg. (4th ed.) 759.

Where compensatory damages are given, the recovery must be confined to the actual damages sustained. Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582. When such damages are susceptible of proof, with approximate accuracy, and may be measured with some degree of certainty, they should not be left to the guess of the jury, even in actions ex delicto. Parsons v. Missouri, etc., R. W. Co., 94 Mo. 286; Pritchard v. Hewitt, 91 Mo. 547; Thomp. Trials, supra, par. 2077. When so left, it is impossible to tell to what extent a verdict may have been affected by the vague estimates the jury may have placed upon the values concerning which there was no proof; consequently it is impossible to say that the jury was not prejudiced by this erroneous instruction upon the question of damages, and for such error the case must be reversed, and remanded for new trial.

In Reed v. Chicago, etc., R. Co., 12 Am. and Eng. R. R. Cases, 107 (37 Iowa, 23), the question presented was directly raised. The Supreme Court of Iowa says: “Under the instruction in question the jury were directed to include compensation for medical services in their verdict. They doubtless would feel authorized to determine the amount to be allowed therefor, according to their own judgment, without aid of evidence. But the law can not be administered in this uncertain way. Damages of this kind can not be found by the jury except upon proof. It will not do to say that the amount of damages allowed by the jury may have been small. We can know nothing about the amount, and if we could know it to be insignificant, we could not relieve this case from the operation of the familiar rules of law which require damages of the character of those under consideration to be established by proof.” To the same effect is the case of Eckerd v. Chicago, etc., R. W. Co., 27 Am. and Eng. R. R. Cases, 114 (70 Iowa, 353).

Filed June 19, 1894.

These authorities seem to sustain the position of counsel for appellant that where there is no evidence showing the amount of the expenses incurred, it is error to instruct the jury as if there were evidence in the case in support of that averment.

The identical question here presented, so far as we are advised, has never been decided by either the Supreme or Appellate Court of this State. This item of expenses is in the nature of special damages. The amount claimed on account of such expenses is one hundred dollars. It is not to be presumed in any event that the jury awarded on this item more than the amount claimed. With some hesitation we are constrained to hold that the giving of this part of the instruction was, under the circumstances, erroneous. If the appellee within sixty days remits one hundred dollars of the judgment as of the date of its rendition, the judgment will stand affirmed at cost of appellee in this court, otherwise it will be reversed with instruction to grant a new trial. The other instructions given by the court fully cover the case, and when construed together as an entirety fairly state the law. As to the instructions asked and refused, so far as they state the law, they were embraced in the instructions given. We have not, except as above stated, found any reversible error in the record.

Judgment affirmed, on condition that a remittitur is filed as above indicated.