Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Seivers

67 N.E. 680, 162 Ind. 234, 1903 Ind. LEXIS 6

Opinions

Jordan, J.

Action by appellee Dora M. Seivers, administratrix of the estate of Deleno Gaby, deceased, to recover damages of appellant for the alleged wrongful death of the decedent. Trial by jury, and finding in her favor awarding damages in the sum of $2,000. Over appellant’s motion for a new trial judgment was rendered on the verdict.

The errors assigned are predicated upon overruling the demurrer to each paragraph of the complaint and upon the decision of the court in denying the motion for a new 'trial.

The complaint is in two paragraphs. The first charges that appellant is a railroad corporation, and on September 25, 1900, was operating a railroad between Logansport, Indiana, and Chicago, Illinois, and from Logansport east and southeast. The pleading alleges in respect to the death of appellee’s decedent as follows: “That along its line between Logansport and the State line between Illinois and Indiana is 'a station called ‘Kenneth,’ situated in Cass county, Indiana; that near said station are large stone-quarries, operated by a company unknown to this plaintiff; that in the operation of said stone-quarries a large number of men are employed, to wit, four or five hundred; that there are at said quarries .large stone-crushing machines propelled by steam, which machines rest upon timbers placed in the ground; that there are also three blacksmith shops, tool-houses, and other buildings belonging to the quarry company; that from the main line of the defendant are three side-tracks or Y’s, which run along by the quarry, and between the crushing machines and said blacksmith shop and other buildings, all of which buildings, crushing machines, and side-tracks are on the ground of the quarry company, and not upon the ground of the defendant; that said tracks are used by the defendant to switch cars, known as ‘gondola ears,’ specially adapted to hauling stone along and in front of the crushing machines for the purpose of being loaded; that through the center of the crushing machine is a path for the employes of the quarry company, by which they are enabled to cross the side-tracks to the buildings on the other side on business for the quarry company; that there is no other way for them to cross; that the several employes must necessarily cross and recross said side-tracks numerous times every day while working for the quarry company; that the points where the path touches the north side-track is so hidden by timber and buildings that it is impossible to see up and down the said track until right upon the track, all of which facts were well- known to the defendant on the said 25th day of September, 1900, and for a long time before; that the defendant kept an engine at said station in charge of an engineer, known as a switch-engine, with which said gondola cars were taken from the main track and backed upon side-tracks, and placed so as to be loaded with stone, and then taken back by defendant to its main track, and shipped to various points in Indiana and other states; that large numbers of said cars were thus backed up and loaded and shipped every day, and as the same, when being backed up and shipped, required constant care upon the part of the employes of the defendant to avoid injury to said employes of the quarry company, it was the custom of the company to back said cars slowly, not to exceed three- or four miles per hour, and to have a brakeman stationed at the rear end, or properly at the front end, of the hacking train, to warn employes, so that they might avoid all injury, all of which facts were well known t(f all said employes, including the plaintiff’s decedent; that on the 25th day of September, 1900, as the plaintiff’s decedent, Deleno Gaby, employed by said quarry company, and while on business for said company, came down said path to cross said side-tracks going south, and as he stepped upon said north track, was struck by a gondola car being backed up from the main line, knocked down and instantly killed by said moving car, owned, controlled, and handled by the defendant; that said decedent was killed by and through the negligence of the defendant' and its employes, and not otherwise, in this, to wit: that there were several cars at the time being backed by said switch-engine; that no brakeman or other person was stationed on the rear end, nor at any other place, to give warning of the approaching cars; that said cars were hacked in a careless and reckless manner, to wit, they were hacked at a speed of ten or twelve miles per hour, all contrary to the custom of the company, along and at the place where the decedent was killed; that had the cars been backed in the usual manner, with the brakeman to give warning, there would have been no danger to the decedent and the other employes, but the deceased was killed, as aforesaid, by the said carelessness and negligence upon the part of the defendant and its employes'.” The second paragraph avers substantially the same facts as the first, except that they are'more specifically and fully set out.

Counsel for appellant with much earnestness insists that both paragraphs are insufficient, for the reason that under the facts therein alleged it is not disclosed that appellant owed any duty to appellee’s decedent which in any manner it had failed to discharge. Various reason^ are also advanced by counsel for appellant to the effect that if the sufficiency of the complaint be conceded, the evidence is not sufficient to sustain the judgment below. Especially is it urged that the undisputed evidence introduced on the part of appellee establishes that her decedent at the time of the accident was guilty of contributory negligence which necessarily precludes a recovery, and for this reason alone it is contended that the trial court should, as requested, have directed the jury to return a verdict for appellant.

Conceding, without deciding, that the complaint is sufficient, we pass to a consideration of the evidence as exhibited by the record in order to determine if the judgment of the lower court thereon can be upheld.

The evidence introduced by appellee establishes that Gaby, the decedent, was an employe of the quarry company at and prior to the time of the fatal accident. lie was about sixty years old, had good eyesight and hearing, and was in the full possession of all of his senses. On the line of appellant’s railroad at a station, called Kenneth, about three miles west of Logansport, in Cass county, large stone-quarries are operated by a company, wherein stone is quarried, put into large crushers, and, when crushed, is loaded onto cars and shipped to various markets. Leading from the main track of appellant is a side-track, and from it are two sidings. These sidings or switches on the premises of the quarry company are about three hundred feet from the main line of appellant’s road. The entire three sidings being located down pa^t the crushing machines, which are situated on the premises of the quarry company. The most northerly track of these three sidings is Ho. i, the center being known as Ho. 8, and the south track as Ho. 6. Under a contract with the quarry company appellant located these sidings upon the premises of the company for the purpose of hauling therefrom the crushed stone which the quarry company shipped away to its various customers. At the aforesaid station appellant had a switching crew, for the purpose of switching and placing cars from the stone-quarries. Eor the benefit and convenience of the quarry company, the switching and setting of these cars, previous to the time of the accident, which occurred On the 25th day of September, 1900, was done as much as possible at the noon hour, being from 11:30 a. m. to 12:30 p. m., and in the evening along' about 5 o’clock, so as not to interfere with the operation of the quarries. It appears, however, that cars were set at other times during the day; for unless there were cars set on the tracks the quarries could not run, as it was necessary to load the crushed stone onto the cars in order that work in the quarries would not be delayed. It is disclosed that the crushers are located on upright timbers, these latter being from twelve to fourteen inches square and from twelve to fifteen feet apart; and on the north side of track No. 1,' and to within three feet and seven inches of the north rail, the crushers are elevated on these timbers several feet above the, level of the tracks, and these timbers obscured the view of the tracks both east and west, but, as hereinafter stated, a person within three and one-half or four feet of track No. 1 would be afforded an unobstructed view of the track in both directions. Crusher No. 6 is the first to the east, then west of it is No. 8. Between these two latter crushers, and about fifteen to twenty feet north of the north rail of track No. 1, there was a stairway leading from the ground up to the crusher. From the foot of this stairway there was a path, which led south under the platform of the crusher, across the three switch tracks. It appears that from fifty to one hundred persons in the employe of the quarry company were accustomed to use this path, passing thereupon over the tracks several times daily. East of this path, and about forty feet from it, was located the engine-house of the stationary engine which was used to operate the quarry machinery. The employes of appellant who were engaged about the station at Kenneth, and also the switching crew, had observed the employes of the quarry company using this path for several years prior to the time of the accident. These employes of the quarry, or stone, company would use the path in crossing the tracks in going over to one of the blacksmith shops operated by the stone company.

Prior to the time of the accident it had been the custom of appellant’s switching crew, when moving cars back onto the tracks or sidings, to have a brakeman or the conductor ride on the foward car, and on the south side thereof, down to the west end of the engine-house, and then to alight at that point and locate or place the cars for the purpose of being loaded with the crushed stone. On September 25, 1900, appellee’s decedent, about thirty-five or forty minutes past 12 o’clock of that day, came down the steps leading from the crushers to the railroad tracks in question, and started across track ETo. 1, and when he reached the middle of this track he stopped, and for some reason looked west, and then started forward over the track, but before he could clear the same, or get across, he was struck by a cut of cars, there being some six or seven in number, which the switching crew was pushing or moving upon the track from the east to a place for loading, and he was run over and killed by reason of the collision.

The evidence introduced upon the part of the plaintiff affirmatively shows that he did not look for the approach of any ear or cars before he entered upon the track for the purpose of crossing, and it also undisputedly appears that after he stepped onto the track he stopped in the middle thereof and, for some reason, looked to the west, and when, he stopped and looked to the west the train of cars by which he was killed was moving down from the east. He did not look to the east at the time he stopped upon the track; for, if he had, it appears that he could have seen the cars or car which struck him, which were then about fifty or sixty feet east of the point where he stopped. The evidence introduced by the plaintiff positively shows -that if he had not stopped upon the track after he entered thereon he could have passed over safely before the train reached the point on the track where he was standing. The witnesses who saw the accident and who testified in behalf of the plaintiff expressly stated that the decedent did not look before he entered upon the track, but that when he did look he was standing in the middle of the track, and then looked to the west, from which no train was approaching. It also appears that had he stopped within three and one-half or four feet of the track upon which he entered, there was nothing to prevent him from seeing the moving cars at that point. In fact, it is established that about three and one-half feet from the north rail of track No. 1, at which point the decedent entered thereon, if he had looked towards the east he could have seen the cars coming down' the track when they were from six hundred to orie thousand feet away from the point where he was standing.

As to the rate of speed the cars were moving at the time of the accident the evidence is conflicting, but there is evidence to show that they were running at a rate of from five to ten miles an hour. The engine bell was not rung, the whistle was not blown, there was no person on the front end of the first car as it was being backed down, or when it reached the point where it struck and killed appellee’s decedent. As the train came towards the crushers a brakeman was stationed either on the back or rear end of the first or second car, and another brakeman was stationed on the other six or seven cars which were farther east toward the engine. The switching crew at the time in question consisted of two brakemen and a conductor and engineer. The conductor was not present at the time of the accident, he having gone over to a place near the main line to get bills for loaded cars which were to be shipped to Logansport that afternoon. The first brakeman it seems, the one which was on the first or second car, got off the car at a point near the west end of the engine-house, which, as shown, was a proper place for him in “spotting” the cars. He conld not ride farther west on'the side of the car on account of the upright timbers which supported the platforms of the crushers.

It appears that by reason, of the noise made by the stone crushers when they were running the ringing of the bell on the switch-engine would be useless, as it could not be heard above the noise made by the crushers. The decedent, on the day of the accident and prior thereto, was engaged in driving a ear cart used in and about the quarries. It does not appear that there was any necessity for his crossing the tracks by the pathway in order to get to the blacksmith shop prior to the occurrence of the accident. It is disclosed that the superintendent of the quarry, a short time before the accident, directed some of the employes working in the quarry to take a screen over to the blacksmith shop in order to have it repaired. But these' men, as it appears, had reached the blacksmith shop with the screen before decedent was struck by the cars. At the time of the accident it is disclosed that he was not working about the side-tracks at the place where he was killed, and the work in which he was engaged did not require him at the time to work upon these tracks.

As previously stated, appellee’s undisputed evidence establishes that her decedent was killed while in the act of crossing the switch or siding tracks; that before entering thereon he failed to look out for a moving train, and, had he exercised his sense of seeing when he was within three and one-half feet or over from the track upon which he entered, he could by looking to the east have seen the cut of ears moving westward. He appears to have passed onto the track without looking, and when in the middle thereof, for some reason, stopped and looked to the west, and just as he turned to go forward he was struck by the cut of cars and killed. The evidence discloses that after ihe entered upon the track, had he gone forward instead of stopping, lie would liare cleared the track' and thereby avoided all danger. The surroundings and situation of the tracks at the point where he attempted to cross were open and obvious. The crew of appellant, which did the switching upon the quarry at and prior to the day of the accident, is shown to have been, subject to the orders and directions of the quarry company. It does not appear to have been the uniform custom of this crew to ring the engine bell and to station a man at the end of the rear car when a cut of cars was being backed upon the tracks. The decedent left surviving him a wife and three children, the latter being twenty-two, thirty-one, and thirty-three years old.

There is much discussion by the learned counsel relative to the question as to whether the appellee’s decedent, in passing over and upon the tracks or sidings in controversy, situated as they were upon the premises of the quarry company, must be considered under the circumstances as a mere licensee by permission of the railroad company, or one by virtue of its invitation. It appears from the evidence that appellant’s rights in and upon the premises of the quarry company arose out of the contract which existed between it and the latter company. The right of the decedent to be upon the premises of the quarry company grew out of the fact that he was an employe of the quarry company at work in its said quarry. Consequently, under the circumstances, it may be asserted that appellant with its switching crew, and likewise the decedent, were upon the lands of the quarry company by its express invitation. Appellant, under the circumstances, in the operation of its ears over the switches or sidings in controversy, and the decedent, in passing thereover:, were each bound to do what the law under the circumstances required. The latter, in entering upon and passing over the tracks, was at least bound to exercise ordinary care and diligence in order to avoid-being injured by moving cars thereon. In the appeal of Louisville, etc., R. Co. v. Schmidt, 147 Ind. 638, we said: “The law interprets ordinary care to be of that degree which a person of ordinary prudence, under the particular circumstances, is presumed to exercise to avoid injury. Such care is required to be in proportion to the danger to be avoided and the fatal consequences that may result from the neglect.”

Conceding, without deciding, that the servants of appellant, in operating or moving the cut of cars at the time of the accident, were guilty of negligence, nevertheless the fact of negligence on their part will not sustain a recovery on the part of appellee, in the face of the facts established by her own evidence, that the decedent, at the time he was killed, was guilty of contributory negligence which proximately caused the fatal accident. Under the undisputed facts it is shown that had he exercised any degree of care or vigilance he could have avoided the collision which resulted in his lamentable death. It is apparent that after he entered upon the railroad track in question, had he merely glanced toward the east he could have observed the moving cars in time to have escaped the impending danger. Before 'entering thereon he certainly owed it to himself to look, at least, in order to discover if he was confronted at the time with any danger or peril in going upon the track. Ilis negligence under the circumstances is certainly conspicuous, and nothing can be legitimately sáid in excuse thereof.

In Stewart v. Pennsylvania Co., 130 Ind. 242, this court said: “A person is bound to use the senses, and exercise .the reasoning faculties with which nature has endowed him. If he fails to do so, and is injured in consequence, neither he, in life, nor his representatives after his death, can recover for resulting injuries.”

Counsel for appellee argue that the rule requiring persons to look and listen at the crossing of a railroad over a ptiblic highway does not apply in all of its strictness to persons whose employment requires them to be “upon, about, and across railroad tracks,” for tlie reason that they can not give the necessary attention to their work and at the same time be on the constant outlook for approaching trains. This principle is expressly recognized and affirmed in the appeal of Baltimore, etc., R. Co. v. Peterson, 156 Ind. 364. See, also, McMarshall v. Chicago, etc., R. Co., 80.Iowa 757, 45 N. W. 1065, 20 Am. St. 445. But the rule is affirmed that where the servant is not at the time engaged at work demanding his attention, it is his duty to look and listen for approaching trains. 20 Am. and Eng. Ency. Law (2d ed.), 145. It appears, however, that the decedent was not engaged at work on the tracks in question at the time he was killed. Hence it was his duty to look and listen for approaching trains or cars, as the law exacts in case of a traveler. We do not moan to assert that it was his duty while at work in the quarry in question, under all circumstances, to stop and listen before crossing the sidings or tracks; but what we do affirm is that, in crossing the track as he did, he was required to exercise ordinary care under the circumstances in order to protect himself from danger. This requirement of the law it is clearly shown he did not heed or observe.

In the case of Ash v. Wilmington, etc., R. Co., 148 Pa. St. 133, 23 Atl. 898, the plaintiff’s husband was employed in the yards of a rolling-mill which were operated by a person other than the railroad company. In the mill-yard there were tracks and sidings which belonged to the rolling-mill, and the defendant railroad company ran its cars over these tracks in conveying material for the use of the rolling-mill. The plaintiff’s husband was killed by the cars at the time they were being operated upon the siding or track belonging to the rolling-mill. She alleged that his death was due to the negligent handling of the cars by the defendant, and to its neglect to give warning that the work of shifting the cars was in progress. The defendant controverted the absence of care on the part of its servants, and alleged that the injury to plaintiff’s husband was due to his own negligence. This contention the court sustained. It was held in that appeal that while the law did not prescribe that in all cases a man must stop, look, and listen before crossing a private siding or switch track, it did require, however, that he should exercise ordinary care; the court affirming that it was his duty to see or discover if the siding was in actual use at the time lie approached it, and that a failure to do so Avas contributory negligence.

It is true as a general rule that negligence on a given, state of facts must be one of fact, but it is equally true that a court is authorized to adjudge as a matter of laAV, upon undisputed facts, that negligence does, or does not, exist in the particular case. In the case at bar, under the undisputed evidence given by appellee’s own witnesses, there can be but one inference or conclusion'drawn therefrom, and that is that the decedent Avas guilty of contributory negligence, and therefore as a matter of law a recovery in faAror of appellee is precluded. Under the facts the court should have directed a verdict in £a.vor of appellant.

N The judgment is reversed, and the cause remanded, with instructions to the loAver court to grant appellant a new trial.