Felt, J.
Appellee brought this action, by his next friend, for damages resulting from an injury to appellee alleged to [62]*62have been caused by the negligence of appellant. There was a trial by jury, verdict for appellee in the sum of $1,000 and judgment thereon.
The first error assigned and relied on by appellant is that the court erred in overruling the demurrer to the complaint.
The complaint, in substance, avers that appellant’s double-track railroad crosses a street in the business center of Waterloo; that said crossing was used by many people, both on foot and in vehicles; that it was a dangerous crossing, and was so recognized by appellant; that on the evening of April 4, 1908, appellee was at said crossing, waiting to cross said railroad as soon as one of appellant’s west-bound freight-trains had passed; that said west-bound freight was closely followed by another train on the same track; that when said freight had passed, appellee, without warning or notice of the approach of another train, attempted to cross, and was struck by an east-bound train, and injured.
'It is then charged that appellant was negligent (1) in not maintaining a flagman at said crossing during the evening, (2) in failing to keep said crossing lighted, (3) in running a second train in such close proximity to said west-bound freight as to divert appellee’s attention from danger on the other track from a train running in the opposite direction, (4) in negligently failing to give the statutory or any other warning of the approach of said east-bound train, and (5) in running said train over said crossing at night at a dangerous rate of speed of twenty miles an hour.
1. 2. It is not a valid objection to a complaint for personal injuries that it charges several acts of negligence in the same paragraph. Proof that any one of such acts was the proximate cause of the alleged injury is sufficient to sustain the action, unless the complaint counts upon the combined effects of two or more of such alleged acts. Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143, 149, 73 N. E. 91; Standard Oil Co. v. Bow[63]*63ker (1895), 141 Ind. 12, 16, 40 N. E. 128; Pittsburgh, etc., R. Co. v. German Ins. Co. (1909), 44 Ind. App. 268, 271, 87 N. E. 995; New York, etc., R. Co. v. Callahan (1907), 40 Ind. App. 223, 225, 81 N. E. 670.
3. 4. The averments of the complaint are sufficient to charge appellant with actionable negligence, and to warrant a recovery in the absence of .contributory fault on the part of appellee. Cleveland, etc., R. Co. v. Miles (1904), 162 Ind. 646, 650, 70 N. E. 985. The averments of the complaint do not show appellee to have been guilty of contributory negligence as a matter of law, and it was, therefore, a question for the jury to determine from the evidence whether he used due care to prevent the injury. Cleveland, etc., R. Co. v. Miles, supra, 654; Baltimore, etc., R. Co. v. Rosborough (1907), 40 Ind. App. 14, 18, 80 N. E. 869.
The substance of the jury’s finding in its answers to interrogatories is as follows: Appellee was injured about 8 o’clock p. m. on April 4, 1908, by being hit by an eastbound freight-train on the north main track of appellant’s railroad, at the crossing of said railroad and Wayne street, one of the business streets of the town of Waterloo; that said train was running at a spded of about twenty-five miles an hour; that at said crossing there were two main tracks, and two side-tracks south of the main tracks; that said crossing was much used by the people of the town and surrounding country; that the night of April 4, 1908, was a dark night, and said crossing was not so lighted that the north track could be seen for any considerable distance on such a night while a train was passing over said crossing on the south track; that just prior to the injury, appellee stood on the south side of a west-bound train on the south track waiting for said train to pass so he could cross over to the other side; that he looked and listened for a train from the west, and continued so to do until he started to go across the tracks, which he did as soon as the caboose of the west[64]*64bound train had passed far enough to let him proceed; that at the time he started to cross said tracks he saw another train about 240 feet distant, coming from the east on the south track; that he did not know whether said train was a freight-train or a passenger-train; that at the time appellee started to cross said tracks he had no knowledge that a train was approaching on the north track from the west; that the passing caboose obstructed the angle of his vision so that he could not see the train approaching from the west, until near the north track; that if appellee had looked to the west when he passed across the south main track in the rear of the caboose of the west-bound train, and before stepping on the north main track, he could not have seen the eastbound train in time to have avoided the injury; that as appellee approached the north track there was a warning call from the conductor of the west-bound train that a train was coming, but such call did not say from which direction; that this call confused appellee, and momentarily halted him, so that he was caught by the north side of the pilot on the east-bound train; that but for such delay he would have gotten safely over; that the bell on the engine of said east-bound train was not ringing as it approached and crossed Wayne street, nor was the crossing whistle sounded; that if the crossing whistle had been sounded appellee could have heard it and if a flagman had been at the crossing to signal him back, he would not have been injured.
5. [65]*656. [64]*64Independent of statute or ordinance, it is the duty of a railroad company to give reasonable and timely warning of the approach of its trains to the crossing of a public highway. Pittsburgh, etc., R. Co. v. Terrell (1912), 177 Ind. 447, 95 N. E. 1109, 1113; Cleveland, etc., R. Co. v. Miles, supra; Pittsburgh, etc., R. Co. v. Burton (1894), 139 Ind. 357, 375, 37 N. E. 150, 38 N. E. 594; Pennsylvania Co. v. Krick (1874), 47 Ind. 368, 371; Indianpolis, etc., R. Co. v. Hamilton (1873), 44 Ind. 76, 82; Lake Shore, etc., R. Co. v. Boyts (1897), 16 Ind. App. 640, 646, 45 N. E. 812. In [65]*65view of these authorities, it is clear that, under the circumstances, the jury was warranted in finding that appellant was negligent in the operation of its trains at the Wayne street crossing, and that such negligence resulted in appellee’s injury. It follows, then, that the general verdict will stand, unless it appears from the answers to interrogatories that appellee was, as a matter of law, guilty of contributory negligence. As already stated, the answers to interrogatories show that appellee looked and listened before he attempted to cross appellant’s tracks; that he heard no sound or signal of a train from the west, but did see a train approaching him from the east on the south track, the speed of which he could not determine; that his line of vision was cut off, and as he approached the north track he heard a signal which confused him and caused him to halt.
Free access — add to your briefcase to read the full text and ask questions with AI
Felt, J.
Appellee brought this action, by his next friend, for damages resulting from an injury to appellee alleged to [62]*62have been caused by the negligence of appellant. There was a trial by jury, verdict for appellee in the sum of $1,000 and judgment thereon.
The first error assigned and relied on by appellant is that the court erred in overruling the demurrer to the complaint.
The complaint, in substance, avers that appellant’s double-track railroad crosses a street in the business center of Waterloo; that said crossing was used by many people, both on foot and in vehicles; that it was a dangerous crossing, and was so recognized by appellant; that on the evening of April 4, 1908, appellee was at said crossing, waiting to cross said railroad as soon as one of appellant’s west-bound freight-trains had passed; that said west-bound freight was closely followed by another train on the same track; that when said freight had passed, appellee, without warning or notice of the approach of another train, attempted to cross, and was struck by an east-bound train, and injured.
'It is then charged that appellant was negligent (1) in not maintaining a flagman at said crossing during the evening, (2) in failing to keep said crossing lighted, (3) in running a second train in such close proximity to said west-bound freight as to divert appellee’s attention from danger on the other track from a train running in the opposite direction, (4) in negligently failing to give the statutory or any other warning of the approach of said east-bound train, and (5) in running said train over said crossing at night at a dangerous rate of speed of twenty miles an hour.
1. 2. It is not a valid objection to a complaint for personal injuries that it charges several acts of negligence in the same paragraph. Proof that any one of such acts was the proximate cause of the alleged injury is sufficient to sustain the action, unless the complaint counts upon the combined effects of two or more of such alleged acts. Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143, 149, 73 N. E. 91; Standard Oil Co. v. Bow[63]*63ker (1895), 141 Ind. 12, 16, 40 N. E. 128; Pittsburgh, etc., R. Co. v. German Ins. Co. (1909), 44 Ind. App. 268, 271, 87 N. E. 995; New York, etc., R. Co. v. Callahan (1907), 40 Ind. App. 223, 225, 81 N. E. 670.
3. 4. The averments of the complaint are sufficient to charge appellant with actionable negligence, and to warrant a recovery in the absence of .contributory fault on the part of appellee. Cleveland, etc., R. Co. v. Miles (1904), 162 Ind. 646, 650, 70 N. E. 985. The averments of the complaint do not show appellee to have been guilty of contributory negligence as a matter of law, and it was, therefore, a question for the jury to determine from the evidence whether he used due care to prevent the injury. Cleveland, etc., R. Co. v. Miles, supra, 654; Baltimore, etc., R. Co. v. Rosborough (1907), 40 Ind. App. 14, 18, 80 N. E. 869.
The substance of the jury’s finding in its answers to interrogatories is as follows: Appellee was injured about 8 o’clock p. m. on April 4, 1908, by being hit by an eastbound freight-train on the north main track of appellant’s railroad, at the crossing of said railroad and Wayne street, one of the business streets of the town of Waterloo; that said train was running at a spded of about twenty-five miles an hour; that at said crossing there were two main tracks, and two side-tracks south of the main tracks; that said crossing was much used by the people of the town and surrounding country; that the night of April 4, 1908, was a dark night, and said crossing was not so lighted that the north track could be seen for any considerable distance on such a night while a train was passing over said crossing on the south track; that just prior to the injury, appellee stood on the south side of a west-bound train on the south track waiting for said train to pass so he could cross over to the other side; that he looked and listened for a train from the west, and continued so to do until he started to go across the tracks, which he did as soon as the caboose of the west[64]*64bound train had passed far enough to let him proceed; that at the time he started to cross said tracks he saw another train about 240 feet distant, coming from the east on the south track; that he did not know whether said train was a freight-train or a passenger-train; that at the time appellee started to cross said tracks he had no knowledge that a train was approaching on the north track from the west; that the passing caboose obstructed the angle of his vision so that he could not see the train approaching from the west, until near the north track; that if appellee had looked to the west when he passed across the south main track in the rear of the caboose of the west-bound train, and before stepping on the north main track, he could not have seen the eastbound train in time to have avoided the injury; that as appellee approached the north track there was a warning call from the conductor of the west-bound train that a train was coming, but such call did not say from which direction; that this call confused appellee, and momentarily halted him, so that he was caught by the north side of the pilot on the east-bound train; that but for such delay he would have gotten safely over; that the bell on the engine of said east-bound train was not ringing as it approached and crossed Wayne street, nor was the crossing whistle sounded; that if the crossing whistle had been sounded appellee could have heard it and if a flagman had been at the crossing to signal him back, he would not have been injured.
5. [65]*656. [64]*64Independent of statute or ordinance, it is the duty of a railroad company to give reasonable and timely warning of the approach of its trains to the crossing of a public highway. Pittsburgh, etc., R. Co. v. Terrell (1912), 177 Ind. 447, 95 N. E. 1109, 1113; Cleveland, etc., R. Co. v. Miles, supra; Pittsburgh, etc., R. Co. v. Burton (1894), 139 Ind. 357, 375, 37 N. E. 150, 38 N. E. 594; Pennsylvania Co. v. Krick (1874), 47 Ind. 368, 371; Indianpolis, etc., R. Co. v. Hamilton (1873), 44 Ind. 76, 82; Lake Shore, etc., R. Co. v. Boyts (1897), 16 Ind. App. 640, 646, 45 N. E. 812. In [65]*65view of these authorities, it is clear that, under the circumstances, the jury was warranted in finding that appellant was negligent in the operation of its trains at the Wayne street crossing, and that such negligence resulted in appellee’s injury. It follows, then, that the general verdict will stand, unless it appears from the answers to interrogatories that appellee was, as a matter of law, guilty of contributory negligence. As already stated, the answers to interrogatories show that appellee looked and listened before he attempted to cross appellant’s tracks; that he heard no sound or signal of a train from the west, but did see a train approaching him from the east on the south track, the speed of which he could not determine; that his line of vision was cut off, and as he approached the north track he heard a signal which confused him and caused him to halt.
His position on the south track was one of danger, and we cannot say, as a matter of law, that he was negligent, under the circumstances, in attempting to cross the north track. He was not bound to wait until absolutely certain that no train was approaching the crossing, but to use ordinary care in attempting to cross. There is nothing in the answers to interrogatories which is irreconcilable with the jury’s finding in the general verdict, that he did use such care. Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 149, 66 N. E. 615. In the case of Dieckman v. Louisville, etc., Traction Co. (1910), 46 Ind. App. 11, 89 N. E. 909, 91 N. E. 179, speaking of a situation similar to that in the present ease, this court, at page 17, said: ‘ ‘ If one acts naturally in a case of sudden and instant peril, put on him by another, and is injured, he is not guilty of negligence, although afterwards, out of the presence of danger, with time to reflect, and in the light of all known facts, it may appear that another course of conduct might have led to his escape.” To the same effect are the following cases: McIntyre v. Orner (1906), [66]*66166 Ind. 57, 69, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. 359, 8 Ann. Cas. 1087; Indiana, R. Co. v. Maurer (1903), 1.60 Ind. 25, 28, 25 N. E. 156; Clarke v. Pennsylvania Co. (1892), 132 Ind. 199, 31 N. E. 808, 17 L. R. A. 811; Lake Erie, etc., R. Co. v. McHenry (1894), 10 Ind. App. 525, 527, 37 N. E. 186.
Dieckman v. Louisville, etc., Traction Co., supra, and Cleveland, etc., R. Co. v. Miles, supra, are similar in principle and in their main facts to the case at bar, and the important and controlling questions raised by appellant in this case are fully answered by those decisions, adversely to appellant’s contention. The Dieckman case also distinguishes the line of eases relied on by appellant from those applicable in that and in this case, making it unnecessary for us again to discuss in detail such propositions.
7. The question of contributory negligence was, under the averments of the complaint and the evidence, a question for the jury. The answers to interrogatories are not in irreconcilable conflict with the general verdict, and this court cannot on such showing disturb the finding of the jury. Lake Erie, etc., R. Co. v. Oland (1912), 49 Ind. App. 494, 97 N. E. 543; Cleveland, etc., R. Co. v. Van Laningham (1913), 52 Ind. App. 156, 97 N. E. 573.
Objection is made both to instructions given and to the refusal of the court to give certain instructions tendered by appellant. The instructions given were quite as favorable to appellant as the law will warrant. Those refused all center around the proposition that the jury should have been told that appellee was guilty of contributory negligence as a matter of law, and to propositions having to do with the town of Waterloo and appellant.
We find no error harmful to appellant in relation to the instructions given or refused. Neither was there any harmful error in the admission or exclusion of evidence as shown by the record.
[67]*67The motions for judgment on the answers to the interrogatories and for a new trial were properly overruled.
Judgment affirmed.