Chicago & Erie Railroad v. Thomas

Dowling, C. J.

—Action for damages for the alleged wrongful killing of appellee’s decedent, James L. Platt, at a street crossing on appellant’s railroad in the town of Markle.

The complaint is in two paragraphs, to each of which a demurrer was overruled. Trial upon the general issue, general verdict for the plaintiff, and answers to 120 interrogatories. Appellant’s motion for judgment upon the answers to interrogatories, notwithstanding the general verdict, was overruled, as was also its motion for a new trial. The action of the court upon the demurrers to the complaint, and upon the several motions, is assigned for error.

The only objection to the complaint pointed out by appellant is the absence from each paragraph of an averment that actual damages were sustained by the death of Platt. Each paragraph of the complaint avers that the decedent left surviving him Alice Platt, his widow, and Eon Platt, a son aged one year, and that both are living. The legal presumption is that both the widow and infant child were entitled to the services of the deceased, and that such services were valuable to both. Such a presumption is sufficient to sustain a complaint against a demurrer which confesses the truth of the averments. Korrady v. Lake Shore, etc., Co., 131 Ind. 261.

It is next insisted that the court erred in overruling appellant’s motion for judgment upon the answers to interrogatories for the reason that the facts disclosed by the answers are such as to require the court to rule, as a matter of law, that the deceased was guilty of contributory negligence.

The following facts are disclosed by the answers to interrogatories: The deceased was about twenty-five years of age. He was killed January 14, 1892. During his whole life he had lived four and a .half miles north of Markle, which lies on the south side of appellant’s tracks, and he had visited the town on an average of once a week during the last three years of his life. On the day of the accident, he was hauling logs from a point north of the tracks to a mill south of them. He hauled one load in the forenoon of that day, crossing the tracks on Lee street, and after unloading, he returned by the same route. In the afternoon, he crossed at the same point with a second load, and was going to his home by the same way when he was killed. He was using a team of horses hitched to a sled constructed of two planks for runners, curved in front, and held in place by benches connecting the runners, and acting as bolsters. The sled was fourteen inches high from the bottom of the runners to the top of the benches, and the decedent was seated on the forward bench, driving his team north on Lee street, at the time he was killed by a west-bound train on the main track. At the time of the accident, the appellant maintained tracks across Lee street as follows: (1) The main track; (2) north of, and fourteen feet from it, a side-track; (3) north of that, and fourteen feet from it, a second sidetrack, and. (4) south of the main track, and from twenty to thirty feet from, it, a third side-track. The space between the main track and the south siding was slightly wider east of the street than at its intersection, and this space was free from obstructions for the distance of 120 feet east of the street, at which point the space was thirty-two feet wide; a pile of lumber was there,the north end of which was twenty feet from the main track, composed of boards twelve to fourteen feet in length — the ends to the track — the pile being from ten to fourteen feet high. To the east of this, and between said tracks, there were other lumber piles, all nearer the side than the main track, and so placed for convenient loading on the cars. Immediately east of the east line of the street, and south of the side-track, with its north edge as near as it could be placed so as to admit the passage of cars, was a lumber dock, extending eastward along the track 120 feet, forty feet wide from north to south, and about as high as the floor of an ordinary freight car, upon which, at various points, were piled two or three car loads of lumber. Standing on the side-track, just north of the lumber dock, was a freight car, the west end of which was from eight to ten feet east of Lee street. Immediately south of the lumber dock, and connected therewith by a runway, on the east line of Lee street, was Eee’s sawmill, two stories high, and 100 feet long, north and south, which was running at the time of the accident. There was a mill on the south side of the tracks, known as Wilkinson’s, the west line of which was about 230 feet east of Lee street. Eor some time before, and at the time of the accident, there was, on the first siding north of the main track, and west of the street, an engine headed west, with twelve or fourteen freight cars attached, the easternmost part of which was near the west line of the street, the train to which they belonged having been cut or divided at the crossing, leaving a part of its cars east of the crossing, and the rest, with the engine attached, west of the street. This train was lying on the siding, awaiting the passage of train number five, which last named train caused the death of the decedent.

At the time of the accident, the decedent’s eyesight was good, and his organs of hearing were of ordinary acuteness. Having discharged his last load, Platt drove northward on Lee street tó a point twenty or thirty feet south of the south siding where he stopped and held a conversation with some one. He remained seated on the front bench of his sled. Prom that point, he could not have seen a train approaching from the east in time to have started thence and crossed the main track before such train, running at the usual rate of speed, would have reached Lee street; nor could he from that point have seen such train at all until it reached the street. As soon as the conversation ended, he started and drove directly north on the street until the collision occurred, which was about 5 o’clock in the evening. The weather was cold, some snow was falling, and the wind was blowing from the west. Those in charge of the locomotive, drawing train number five, did not, when such locomotive was not less than eighty nor more than 100 rods from Lee street, distinctly sound the whistle three times, nor continuously ring the bell of the locomotive until said locomotive had passed the crossing of Lee street.

Some of the interrogatories, and the answers thereto, are as follows: “If said Platt, in passing over the tracks on the occasion of the accident, had looked eastward from a point in the center of the space, between the main and south side-track, on Lee street, could he have seen a train approaching from the east far enough to'have avoided the accident by remaining where he was until it had passed ? Answer. No.”

“Did Platt, while on his way across the tracks on the day of the accident, when in the space on Lee street between the main and south side-track, look to the eastward to see whether or not a train was approaching from that direction ? Answer. No.”

“While attempting to pass over said tracks, just before the accident, was the deceased continuously looking to the west or northwest in the direction of the engine and cars attached thereto, and standing’ west of Lee street on the track first north of the main track? Answer. No, he was looking north and northwest.”

“Did the decedent, on the occasion of the accident, and before driving upon the main track, listen for the noise ■which ordinarily accompanies a train in operation? Answer. No evidence.”

“On the occasion of the accident, how far conld a person of ordinary hearing, listening at Lee street crossing, have heard the noise of train number five approaching from the east ? Give distance in rods. Answer. Ten or fifteen rods.”

“If said Platt had looked eastward, from the point indicated in the last question (being the first question set out in this opinion), could he have seen a train approaching from the east at the rate of thirty to forty miles per hour far enough so that he might have driven across the main track before it reached the crossing ? Answer. Yes.”

“Was there a point at that time on Lee street in the space between the main and south tracks where Platt could, by looking eastward, have seen a train approaching the crossing and traveling at the rate of thirty to forty miles per hour, in time to have avoided the accident, either by remaining in said space, retreating from it, or hastening over it? Answer. Yes.”

“Could one, with ordinary visual organs, at the time of the accident, from a point in the center of the space between the main and side-track in Lee street, have seen a train approaching from the east at a distance of 350 feet ? Answer. Yes.”

It is evident from the answers to the interrogatories that the place where the decedent attempted to cross the railroad track was one of extraordinary peril, requiring the exercise on the part of the traveler of extraordinary care. The number of tracks, the obstructions which prevented approaching trains from being seen, the temporary increase of the danger by the presence of the freight train which had been cut in two on one of the tracks, the state of the weather, and the lateness of the hour admonished the decedent that only by the exercise of unusual vigilance could his safety in crossing be secured. It appears from the answers to the interrogatories that he exercised no caution whatever. If there had been but a single main track, his conduct in crossing it would have bordered upon recklessness. His seat was low, the vehicle upon which he rode of a somewhat unwieldlv character, and his horses were a considerable distance in advance of the place where he sat. At such a place, and under such circumstances of evident danger, it would seem that the decedent should have gone in advance of his team and made careful observation of his surroundings before he placed himself in a situation of danger from which he could neither safely advance nor retreat. As the noise made by the locomotive of the freight train prevented him from hearing the noise of the approaching train, the necessity for looking up and down the track from some position which enabled him to see an approaching train in time to avoid it, became all the greater. It was incumbent on the appellee to show that his decedent was free from contributory fault, and that the accident resulted exclusively from the negligence of the appellant. The answers to the interrogatories unmistakably proved that the injury to the decedent was the result of his own want of care. The fact that the persons in charge of the locoxnotive failed to sound the whistle, and ring the bell, as required by the statute, did not excuse the decedent from the exercise of the caution and vigilance demanded by the known perils of the crossing. Korrady, Adm., v. Lake Shore, etc., R. Co., 131 Ind. 261.

Our conclusion is that the court erred in overruling the motion of the appellant for judgment upon the answers to the interrogatories, notwithstanding the general verdict, and for that error the judgment is reversed, with instructions to the ITuntington Circuit Court to vacate the judgment and grant a new trial, and for further proceedings not inconsistent with this opinion. This course, we think, will xxiore fully subserve the ends of justice than a direction to the trial court to render judgment against the appellee upon the answers to the interrogatories.

Hadley, J., dissents.