Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Lynn

Myers, J.

This is the second appeal in this canse*, Cleveland,, etc., B. Co. v. Lynn (1909), 171 Ind. 589, 85 N. E. 999, 86 N. E. 1017. On the return of the cause to the* court below, a further, or fourth paragraph of complaint was filed, to which a demurrer was addressed for want of facts sufficient to constitute a cause of action, and was overruled, and that ruling is the first alleged error presented.

The allegations of this paragraph, with reference to looking and listening, which is the ground of attack on this paragraph, are identical with the allegations of the second and third paragraphs, which were before the court on the former appeal, where the same contention was made as here, viz., that the complaint shows that appellee did not look or listen until he was within two or three steps of the track, at which time he was looking to the southeast, when he was immediately struck by a train coming from the northeast, he having alleged a previous looking to the northeast, and. showing a train going in that direction on the eastern track of a double track, the insistence being that his failure to see or hear the train coming from the northeast constitutes contributory negligence as a matter of law.

1. It was determined on the former appeal, under the same allegations, that it cannot be said, as a matter of law, that, under all circumstances or conditions, looking or listening at a particular time, in a particular direction, or from a particular place is required. Chicago, etc., R. Co. v. Fretz (1910), 173 Ind. 519, 90 N. E. 76; Greenawaldt v. Lake Shore, etc., R. Co. (1905), 165 Ind. 219, 74 N. E. 1081; Cleveland, etc., R. Co. v. Stewart (1903), 161 Ind. 242, 68 N. E. 170; Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 66 N. E. 615; Pittsburgh, etc., R. Co. *316 v. Burton (1894), 139 Ind. 357, 37 N. E. 150, 38 N. E. 594; Chicago, etc., R. Co. v. Hedges (1886), 105 Ind. 398, 7 N. E. 801; Greany v. Long Island R. Co. (1886), 101 N. Y. 419, 5 N. E. 425; Case v. Chicago, etc., R. Co. (1910), 126 N. W. (Iowa) 1037; Minot v. Boston, etc., Railroad (1905), 73 N. H. 317, 61 Atl. 509; Chicago, etc., R. Co. v. Keegan (1904), 112 Ill. App. 338; Oldenburg v. New York, etc., R. Co. (1891), 124 N. Y. 414, 26 N. E. 1021; 3 Elliott, Railroads (2d ed.) §1179a and eases cited.

The only material allegations of the fourth paragraph different from the second and third paragraphs are that in the two latter there is no direct allegation as to the direction from which the train which struck appellee came, while in the fourth paragraph it is alleged that it came from the northeast. The opinion of the court in the former appeal discloses that other allegations of the second and third paragraphs were such as to disclose that the train came from the northeast. The able counsel earnestly insist that a different question is presented by the fourth paragraph, in the allegation that the train came from the northeast, but the application of the rule declared in the former appeal, and in former cases, does not seem to us to change the situation. The same obstruction and the same surrounding conditions are alleged in the second and third paragraphs.

2. Appellant’s contention amounts to this: That as, under the allegations, appellee looked first to the northeast, and then to the southeast where there were not alleged to be any obstructions, and the train came from the northeast, he should have either looked first, or kept looking in that direction, or looked after he passed the watch-house. The complaint alleges that the view to the northeast was obstructed until appellee reached a point within eight or nine feet of the west track; that the track was double, and from a short distance south of the point where he was located, curved considerably to the south and east, and that east and south of these tracks were the yards *317 of another railway company, in which were many tracks and switches curving with appellant’s main tracks. It is not averred which of the two tracks was used for the north bound trains, nor which for the south bound trains, and we cannot say, because there is not alleged to have been an obstruction to the south and east, that he was under no obligation to look south and east, and should have looked to the northeast. It was his duty, in any event, to look to the .southeast, because he could not excuse himself for not looking in that direction, also, to guard against possible injury. Pittsburgh, etc., R. Co. v. Seivers (1904), 162 Ind. 234, 67 N. E. 680, 70 N. E. 133; Stoy v. Louisville, etc., R. Co., supra; Malott v. Hawkins (1902), 159 Ind. 127, 63 N. E. 308; Morford v. Chicago, etc., R. Co. (1902), 158 Ind. 494, 63 N. E. 857.

The fact that no obstruction is alleged to the south and east, and might require less attention than in looking to the northeast, in any event only shows a difference in the degree of care required as to one direction rather than another, and still leaves the question as to the care which is alleged as to looking to the northeast, and as the allegations are the same on that question in each paragraph, it must be held to have been determined, as it was specifically, as is shown by the opinion on the former appeal. It is urged that as it is alleged that the track was straight to the northeast, and no other obstruction than the watch-house is alleged, it must be taken that after appellee had passed the watch-house he could have seen. But it is averred that he stopped and looked up the track 250 feet, to see if any train was approaching from that direction, and also listened, but did not see any train approaching, nor hear one. The former appeal directs attention to this allegation, coupled with showing the distance the train would travel in a few seconds, and the possibility that the train was not within 250 feet. If appellant had desired a more specific allegation as to what distance to the northeast the track was straight, or as to *318 what was meant by “a considerable distance,” it should have made a motion for that purpose. The question was determined adversely to appellant on the former appeal, in which it was squarely held that appellee’s failure to look to the north, after passing the watch-house, was not, as a matter of law, negligence.

3. It is next urged that as the allegation is that a person approaching the track from the west “would have his view of defendant’s tracks to the north obstructed until,”, could refer only to the date of filing the complaint, and does not relate to the time of the incident, and is not an averment that the watch-house did obstruct the view. The allegations show that on the day appellee was injured, with others he was engaged in moving a watch-house, and had just placed it, and that his view to the north would have been obstructed by said watch-house about twenty feet west of the track, continuously up to a point within eight or nine feet of the west track. The allegations show the obstructions to relate to the time of setting the watch-house, and of the accident, and is a sufficient allegation of the obstruction, for if it would obstruct, necessarily it did.

4. It is next urged that as appellant has alleged in detail just what appellee did, there is a clear inference of contributory negligence, based on the theory that he was bound to see and hear what, by looking and listening he would have seen, or heard. But the difficulty with appellant’s position on that point is, that that is asking us to assume that appellee was bound to look or listen at a particular place, in a particular direction, at almost a particular instant of time, irrespective of other relations or conditions. It might be a fair inference of fact, but there is in it just the difference between looking or listening, where the court can say that he must have seen or heard, and looking or listening under conditions where it is possible that he might not have seen or heard, with the added duty *319 of appellant to have a bell ringing, and to move its cars not to exceed five miles an hour.

The allegations are that the Chicago and Eastern Illinois Railroad Company had a great number of main tracks and side-tracks east of, and parallel with appellant’s tracks; that appellee was an employe of the former company; that at the time of the accident he was engaged, with his coworkers, in removing the watch-house, which occasioned the obstruction of which he complains, from the south side of Third avenue to the north side; that after setting the watch-house appellee started from a point on the north side of said avenue, about twenty feet west of appellant’s west track, to cross said defendant’s tracks, and when he got to the southeast corner of the watch-house (which is elsewhere alleged to have been in dimensions nine feet north and south, and six feet east and west, and nine feet west of the west.track) “he stopped and looked up defendant’s tracks for a distance of about 250 feet, to see if any train was approaching from that direction, and also listened, and did not see any train approaching from that direction on defendant’s west track, and neither did he hear any train approaching on said track, but he saw and heard a train on said defendant’s east track, north of said avenue, going northeast, whereupon plaintiff looking to the southeast, to see if any trains were approaching from that direction, took two or three steps in said avenue, toward defendant’s tracks, and just as he got one of his feet over the west rail of defendant’s west track, the defendant, by, and through its servants, and agents, in charge of a locomotive engine drawing a train of cars approaching said avenue from the northeast, unlawfully, carelessly, negligently, and in violation of the laws of the State of Indiana, and in violation of said ordinance, within the corporate limits of said city, ran said locomotive engine, and train of cars, without sounding the whistle, or ringing the bell as required by law, and without giving any notice, or warning whatever,” and struck appellee, etc. It is alleged that but for *320 this neglect the injury would not have occurred. It thus sufficiently appears that appellee was a traveler over the street at the crossing. The cases of Chicago, etc., R. Co. v. McCandish (1907), 167 Ind. 618, 79 N. E. 903, and South Bend Iron Works v. Larger (1891), 11 Ind. App. 367, 39 N. E. 209, are not in point. In the former case there was no showing that the injured person had any right to be where he was, or that there was any duty to keep a bell ringing. In case of South Bend Iron Works v. Larger, supra, appellee was a licensee only. Here it is shown that appellee was a traveler, and in a place where he had a right to be1.

The evidence shows without contradiction that appellant’s tracks north of Third avenue were in a direct line for 2,700 feet, and ran in a general northerly direction, but slightly east of north. The only obstruction to the vision north and east was the watch-house, which appellant, within a few minutes, had placed on the north side of, but near to the sidewalk on that avenue, the east line of the watch-house being ten feet west of the west rail of appellant’s west track. The watch-house was sixteen and two-tenths feet north and south, eight and two-tenths east and west, and eight feet high. There were no physical connections between the tracks from Third avenue north for a distance of 2,700 feet. Appellee’s statement of the injury was that he had no previous knowledge that the two tracks were operated by appellant, and that the first time he had been on the west side of the tracks was on the morning of the injury, when, as directed by his foreman, he took four other workmen and moved the watch-house from the south side of Third avenue to the north side, and that it took about forty minutes for them to move it across and set it in position. He started to a tool box for a rule, the tool box was a little east of south, near a cinder pit on which they had been working, and the cinder pit was 575 feet from the shanty, but across several tracks. When he started he was on the west side of the watch-house, near the southwest corner, on the north side of *321 Third avenue. He went east six or eight feet, and looked up the track north 250 or 300 feet, and could see no farther on account of the corner of the watch-house. He looked east, and saw the flagman from sixty to eighty feet east of him. He did not look north again, because he thought he had looked far enough, and saw nothing, and it looked clear to him. He then turned and started diagonally across the street and tracks, and did not again look north, and when he had gone three or four steps, and gone ten or twelve feet, and as he was about to advance his left foot over the west rail, he was struck by a train coming from the north. The evidence varies as to the speed of the train, some witnesses putting it as much as twenty-five to thirty miles an hour, others at from twelve to fifteen, but no one placed it at less than eight. The engineer fixed it at from eight to twelve miles an hour. The speed ordinance was five miles an hour, and required the continuous ringing of the bell. To the south and east the tracks were unobstructed for a distance of about 1,100 feet, though a two degree curve to the east set in 400 feet from the watch-house. At any point between the watch-house and the west rail of the tracks, the tracks northeast were straight and unobstructed for 2,700 feet.

On this state of the evidence the court charged the jury by the fourth instruction as follows: “It cannot be said as a matter of law, that plaintiff while approaching and attempting to cross defendant’s tracks at Third avenue, should have looked and listened for approaching locomotive engines and trains, at any particular point, or at any particular time, or that he should have looked in one direction at a particular time, and in another direction at another particular time. These are questions for you to determine. The law simply says that he should have looked and listened at such time, at such places, and in such directions as a person exercising ordinary prudence would have done under the circumstances surrounding the plaintiff at the time, as shown by all the *322 evidence in this case.” The fifth instruction states that “the plaintiff under the law was bound to use ordinary care as he approached, and attempted to cross defendant’s tracks at Third avenue, and if the evidence shows that as he approached and attempted to cross said track he exercised that degree of care that an ordinarily prudent person would have exercised under all the circumstances surrounding Mm, as shown by all the evidence in this case, and was unable to hear and see the locomotive engine approaching, until it was too late to avoid a collision, then he was not guilty of contributory negligence. ’ ’ By the sixth instruction the jury was told that “persons who desire to cross a railroad track at a point where a highway crosses the same, have a right to do so, and are only required to exercise ordinary care in doing so. To constitute such care, one approaching a railroad crossing must use his senses of sight and hearing, and take all reasonable precautions to avoid injury by passing locomotives, engines and trains. The kind and degree of care to be taken, must depend upon the circumstances of each case. The traveler is required to act as a person exercising ordinary care and prudence would act, under the circumstances surrounding him.” No other instructions were given on the subject of looking or listening.

5. It is objected as to the fifth instruction, that the law fixes the quantum of care required of a traveler about to cross railroad tracks, and that it requires Mm to stop, and look and listen. The rule does not go so far as to require stopping, unless it is necessary that he should stop in order to see. 3 Elliott, Railroads (2d ed.) §§1166a, 1167.

The rule in Malott v. Hawkins, supra, on that point goes no further than to hold that the traveler must use ordinary care to select a place from which to look or listen. If the rule in Pittsburgh, etc., R. Co. v. West (1904), 34 Ind. App. 95, 69 N. E. 1017, should obtain on the subject of the presumption of seeing, it should be restricted, as in that case, to *323 what is within the range of vision, unless the traveler fails to exercise ordinary care in selecting the place from which to look.

6. The instruction is to be considered with relation to other established rules of law, and other evidence, and especially with the fact shown by the evidence of the existence of an ordinance limiting speed to five miles an hour, and requiring the continuous ringing of the bell, and it is shown by the evidence that appellee had knowledge of the speed ordinance, and had a right to rely on it. The objection made to the fifth instruction is that it ignores the “look and listen” rule, and leaves it to the jury to say that appellee was not required to look and listen, and that it was sufficient that he should have used ordinary care to acquit him of negligence “though he failed to stop, and look and listen.” The instruction is not open to the criticism made when taken in connection with the fourth charge on the subject of using his senses, and taking all reasonable precautions for his safety.

7. The objection to the sixth instruction is that it leaves it t© the jury to excuse appellee from looking and listening. It need hardly be suggested that ordinary care requires the use of the senses of sight and hearing, and their application to conditions where seeing and hearing will be of practical avail, and the instruction requires all reasonable precautions to be taken, which include the use of those senses.

The instruction is also assailed on the ground that it is claimed that the law fixes the quantum of care to be used by a traveler in eases of this kind, and it is not enough that he use ordinary care, and use his senses of sight and hearing, but he must assume that there is danger, and act on that assumption, and that he must listen for signals, and look attentively up and down the track, and on another ground that the court cannot tell the jury the kind of care to be exercised, and leave it to the jury to determine that ordinary *324 care does not require the traveler to look and listen. These two positions as to the same instruction, lead to a legal solecism, for if the law fixes the quantum of care in every case by a hard and fixed rule, then the court must so charge, and that results directly in the jury being told the kind of care that is to be exercised, which is well understood to be ordinary care. We are not able to see that the instruction is open to these objections.

Instructions nine, ten and eleven, requested by appellant, and given, presented the question of the increased vigilance required in the presence of known dangers or hazards, and were not otherwise materially different from the questions presented by instructions four, five and six. It would be inexpedient, if not impossible, to lay down a hard and fast rule on the subject of the quantum, or character of care required in every case, or to go further than the courts have gone in applying a general rule by saying that reasonable care must be used in view of all the circumstances and conditions, in which is involved the necessary elements of looking and listening, and their attendant consequences; the requirement to stop when necessary in order to see or hear, to look or listen from positions where their exercise will be of avail, in seeing or hearing; the requirement of increased caution in the presence of known dangers or signals; but after all, each case must stand on its own peculiar circumstances and facts.

Other general instructions given on the subjects of credibility of witnesses, looking, listening, and care, are assailed by appellant. We have examined each of them with care; they are numerous and voluminous, and it would unduly extend this opinion to set them out, but we are unable to discover harmful error in them.

8. Instruction fourteen consisted of the reading of §5431 Bums 1908, §4020 R. S. 1881, on the subject of signals at highway crossings. The instruction was in nowise applicable in this case as to a crossing signal. The proviso of the act was for the purpose of marking the *325 distinction between rural highway crossings and the police regulations in cities and incorporated towns, and the section is to be taken in connection with the ordinance which by section five provided that whistles shall not be sounded “within the city, except in making necessary track signals, and such as may be absolutely necessary to prevent injury to persons and property other than their own,” etc., and, on appellant’s application, the court instructed the jury that this ordinance was in force, so that in no event could appellant be harmed by the instruction, or the jury misled into believing that whistling was required. Cleveland, etc., R. Co. v. Miles (1904), 162 Ind. 646, 70 N. E. 985.

9. Complaint is made of instruction fifteen, on the question of the assessment of damages, in which the language is used, “you may consider every particular phase of his injuries, loss of time, if any, with reference to his condition and ability to earn money, in his business or calling,” it being urged that it should have added, “arising from the injury,” or some such phrase. There was no evidence as to his condition other than his physical condition arising from the injury, and the damages are restricted to his injuries. Vandalia Coal Co. v. Yemm (1911), 175 Ind. 524, 92 N. E. 49, 94 N. E. 881, and cases cited.

10. By appellant’s fourteenth instruction, the court was requested to instruct the jury that if appellee was in possession of his faculties, and knew and appreciated the obstruction created by the watch-house, and went voluntarily on the crossing without taking the precaution to advise himself as to approaching trains, as fully as he could have done without the watch-house, he incurred the risk, and cannot recover. Incurring the risk is properly applicable to the relation of master and servant, and while it is sometimes referred to in the discussion of cases, except in case of master and servant, it is so used only as a synonym for contributory negligence. Appellant’s contention is based on some of the language used in Indiana, etc., Oil Co. v. O’Brien *326 (1903), 160 Ind. 266, 65 N. E. 918, 66 N. E. 742, where there is a discussion of the comparative meaning, force and application of the terms, hut it will he seen that the decision is grounded on the proposition that incurred risk is a species of contributory negligence, in actions arising out of noncontractual relations, for the provisions of the statute, as to the burden of proof of contributory negligence, are held to apply, and also that it was not necessary to negative knowledge, in order to make a good complaint in that case, as against the rule where assumption of risk is required to be negatived. The eases are collected and discussed in that case. There is perhaps a distinction in the law of master and servant between contributory negligence and assumption of the risk, which is well stated in the text of 4 Thompson, Negligence §4611. See, also, Labatt, Master and Servant §§305, 306.

Aside from this feature of the instruction, the point is disposed of by the opinion on the former appeal, that it cannot be said, as a matter of law, that a traveler is required to look from any particular position, regardless of all other considerations. The question was fully covered by the nineteenth instruction requested by appellant, which is stronger and more specific as to the duty of appellee than the fourteenth.

Instruction sixteen was predicated on the doctrine of contributory negligence from voluntarily selecting a place for looking where seeing is partially obstructed, based on the rule in Lundergan v. New York Gent. R. Co. (1909), 203 Mass. 460, 89 N. E. 625. The distinction between that case and this is, that in that ease there was no requirement for signals, and as is said in that case, with respect to a traveler’s seeing gates open, but the watchman absent, and the traveler’s not knowing that the gates were temporarily out of use, he was justified in regarding this as a circumstance indicating that he might cross in safety, and if nothing more appeared, it would be for the jury to say to what extent he was bound to *327 extend Ms watchfulness, and this was practically the position stated in the former appeal, on the question that appellee was required to look after he passed the watch-house, taken in connection with appellant’s duty to give the required signal, and the limit of speed.

11. Instruction twenty was properly refused, as it goes to the question of the watchman being absent from his post of duty, but the evidence shows that the watchman was at the crossing, and there is no evidence that appellee knew where he should be, or that he was not where he should be.

12. Instruction twenty-seven is too broad. It tells the jury, without any qualification, that if appellee placed, or assisted in placing the watch-house, “he cannot be excused from failing to see and observe the approach of defendant ’s train which struck him. ’ ’

13. By the twenty-ninth instruction the court was requested to instruct that “where an injury results from an accident that ordinarily careful and prudent men in the exereise of ordinary care would not have foreseen and anticipated as likely to occur, the law regards it as purely accidental, and for such injury no one can be held liable.” The court gave the following, “If you believe from the evidence that the injury to the plaintiff was caused by a mere accident, then your verdict should be for the defendant. ” It is claimed that this leaves the jury to determine, as a matter of law, what is an accident. The court also instructed the jury that negligence is the doing, or omitting to do something which a person of ordinary prudence, in the exercise of ordinary care, would or would not do or omit, under the circumstances. Appellant’s requested instruction states the abstract question of law correctly, as does also that given, but appellant’s request ignores the question of negligence per se, in the failure to ring the bell, and the speed ordinance, where there is express duty coupled with the known dangers in approaching crossings, and where a care *328 ful and prudent man might reasonably expect danger and collision, the very thing to be guarded against, and for which the ordinance was enacted, so that appellant was not harmed by the failure to give the instruction.

Other questions are presented as to the admission and rejection of evidence. We have examined them in detail. Each involves uncontradieted or immaterial facts, or was properly admitted or rejected.

14. In the absence of the signal, and with a rate of speed greatly in excess of the speed ordinance, we cannot say that the evidence does not support the verdict. It may have been a fair inference by the jury, that as appellant knew of the speed ordinance, and with an ordinance requiring the continuous ringing of the bell, if these precautions had been observed he would not have been injured, even though he did not look further than 250 feet to the northeast, for with a train within that distance, he might, both from the rate of speed required and from a ringing bell, have avoided the injury, or passed in safety. At least on the question of his alleged negligence, the matter was for the jury under all the evidence.

The judgment is affirmed.