DISSENTING OPINION. I cannot agree to the majority opinion herein, and therefore I dissent. I am compelled to challenge some of the statements of fact in the majority opinion as misleading without the aid of photographs in evidence, and I shall, therefore, make such photographs a part of this dissenting opinion, with the hope that they may be made a part thereof as published. The following is a photograph taken with the camera located 60 feet north of the east-bound track on which the train was running to the east, and with the camera looking in the direction from which the train came. I am assuming that the natural eye could see the same things that the camera's eye saw.
I first call attention to the box cars which are mentioned so prominently in the complaint and in the majority opinion, and to the fact, as appears by the camera, that when the automobile in which appellee was riding was yet 60 feet from the crossing, these box cars were *Page 579
[EDITORS' NOTE: EXHIBIT ”B” IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 580 then back of the automobile, and that they were wholly eliminated as an obstruction to the view. The effect of mentioning them in any way is to create a wrong impression that they were obstructions to view. The building farthest to the west is the coal dock, which was 819 feet west of the crossing, and to the side of which can be seen the tracks of appellant's railroad. The south track is the one on which the train was running that was involved in this accident. Now, notice how little the "line of poles" obstruct our view as we look in the direction in which the camera was looking. They would scarcely make a blur on the bright electric headlight of the engine. The watch tower is on posts high in the air, so that we look under it when we look in the direction in which the camera was looking. The posts on which it was standing make but little obstruction to our view. While we are looking, just imagine a train coming, as it were, from behind the coal dock, 819 feet away. Does any one think he would have any difficulty in seeing it all the way from the place of its first appearance to the crossing? The majority opinion tells us that a photograph shows that "to the west of Olive Street, between the passing track and the new track, and north of the west bound track, there is a line of telegraph poles, an elevated tower house, a toolhouse and other obstructions. It shows a space between the new track and the passing track where a traveler on the street could not, by looking to the west, have seen an approaching train until it had reached a point opposite the coaldock." But the coal dock was 819 feet to the west of Olive Street, nearly a sixth of a mile, and a look at the photograph shows that, from that point, all the way to Olive Street with the camera 60 feet from the crossing, the view was wholly unobstructed, and from that point, 60 feet away, there was nothing to obstruct the view as appellee and her driver approached the crossing. Whether the train *Page 581
[EDITORS' NOTE: EXHIBIT ”C” IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 582 could have been seen west of the coal dock cannot possibly make any difference. It was then too far away to affect the conditions surrounding the accident.
The photograph above taken with the camera 35 feet north of the east-bound track, fully corroborates the statement that there was no obstruction to the view, after within 60 feet from the crossing. If there is an obstruction of any kind or character between us, standing with the camera 35 feet north of the east-bound track, I fail to see it. As it appears to me, the photograph does not show even a straw to obstruct the view. The photographs show that the train, with its glaring electric headlight burning, had to be in plain view after it left the coal dock 819 feet away. I agree, however, that had we been at this place, 35 feet north of the east-bound track, at the time and just as appellee was, we could not have seen the train coming from behind the coal dock, for the reason that it was not there. As the photograph shows that there was no obstruction whatever this side of the coal dock, the train would have had to be beyond the coal dock to be out of sight, and we agree that it would have had to travel more than eight miles per hour to reach the crossing with appellee's automobile. Appellee's automobile was being driven in low gear, over railroad tracks, and so slowly that, according to the driver's testimony, it could have been stopped in three feet; certainly, then, it was not traveling more than six miles an hour. If the automobile was traveling three miles per hour, after it reached a point 30 feet from the crossing, the train, if emerging from behind the coal dock, would have had to travel 82 miles per hour to reach the crossing with the automobile. If traveling six miles per hour, then the train would have had to travel 163 miles per hour, and if traveling 10 miles per hour, then the train would have had to travel 273 miles per hour. All this goes to show that the train *Page 583 was not so far from the crossing. Had the train been running 40 miles per hour, and there is not a scintilla of evidence to that effect, it would have knocked that Ford sedan into smithereens, instead of just carrying it about 25 feet and just turning it around. It does not appear by the evidence that the car was in any way damaged, not even that a glass was broken. What a fine opportunity to have shown something of the speed of the train by showing that the car was badly wrecked. While the evidence does not undertake to account for appellee being found so far to the east of the place of the accident, it needs no argument to convince any reasonable person that she was not knocked that distance. Had such been the fact, she would have been killed instantly, instead of having a fracture of the left humerus. But, assuming that the train was traveling 40 miles per hour, which is the limit of averment in the complaint, with no proof to sustain it, and the automobile was traveling at six miles per hour, the train could have been not more than 400 feet from the crossing, and the photograph taken at 60 feet shows that the only obstruction to seeing the electric headlight, was one telegraph pole and possibly two. Appellant's statement, challenged in the majority opinion, that appellee's view to the west was unobstructed after she reached a point 60 feet from the place of collision was not seriously incorrect. We are not weighing the evidence where we state what the photographs show and draw our conclusions therefrom.
I have made the foregoing computations for the purpose of showing that the train was well this side of the coal dock, at least half way between the coal dock and the crossing, when appellee's automobile was running in low gear 60 feet from the crossing, and that she and her driver approached the crossing with the train in plain view, with its electric headlight burning, and without any obstruction whatever to their view, and that the *Page 584 only reason they did not see the train was that they negligently failed to look. The engineer and the fireman both testified positively and emphatically that the whistle was blown, two longs and two shorts, just west of the coal dock, and that the bell had been ringing automatically since the train left Valparaiso. The good reputation of these men is wholly unchallenged, and there was no evidence to the contrary, neither as to the whistle nor the bell, except the statements of appellee and Watson, her driver, that they did not hear them, which no doubt was true. They were in a Ford sedan, driving in low, over three or four railroad tracks, and if they were so otherwise absorbed that they could not see the electric headlight approaching, it is suggested that they would not have heard a brass band had one been playing.
The look and listen rule is so well established that it hardly seems necessary to cite authorities pertaining thereto.
In Chicago, etc., R. Co. v. Hedges, Admx. (1889),118 Ind. 5, 20 N.E. 530, it was held that, where one could have seen an approaching train for 200 feet when nine feet from the track, and stepped immediately in front of a moving train, he was not entitled to recover.
In Louisville, etc., Co. v. Stommel (1890), 126 Ind. 35, 25 N.E. 863, it was held that failure to avail one's self of opportunities to look and listen, and carelessly venturing upon a railroad track, precludes recovery for the injury.
In Louisville, etc., R. Co. v. Stephens (1895),13 Ind. App. 145, 40 N.E. 148, it was held that one having view of a railroad track for 300 feet when 20 feet from it, and going upon the crossing in front of an approaching train, without stopping to look and listen, is contributorily negligent and cannot recover.
In Union Traction Co. v. Gaunt (1922), 193 Ind. 109, 135 N.E. 486, it was held that a passenger in a vehicle *Page 585 crossing railroad tracks is not excused from exercising due care, and if such passenger does not exercise such care as a reasonably prudent person would exercise under the circumstances, such person cannot recover for injury occasioned by failure to exercise such care.
In Lake Shore, etc., R. Co. v. Boyts (1897),16 Ind. App. 640, 45 N.E. 812, it was held that a guest riding with a driver, on approaching a crossing, has a duty to look and listen, if practicable; and, to recover for an injury, he must be free from contributory negligence, and it was further held that one riding with the owner of a team on approaching a crossing, at which a coming car could have been seen 60 or 80 feet from a point 20 or 30 feet from the crossing, and who failed to look and listen, was guilty of contributory negligence.
In Ohio Electric Co. v. Evans (1922), 77 Ind. App. 669, 134 N.E. 519, we quoted with approval from the Boyts case that, though one "`may be simply a guest, if he has opportunity to do so, it is no less his duty than it is the duty of the driver, when approaching a railroad crossing, to look and listen and to learn of danger and to avoid it if practicable,'" citing a long list of authorities to sustain the rule.
In Paramore v. Denver, etc., R. Co. (1925), 5 F.2d 912; Id., 269 U.S. 560, 46 Sup. Ct. 20, 70 L. Ed. 411, it was held that a passenger in the front seat of a Ford automobile who had an unobstructed view for 186 feet before reaching a railroad track, was guilty of contributory negligence as a matter of law for failure to discover a train approaching at the rate of 15 or 20 miles per hour in time to have avoided a collision. In the instant case, the unobstructed view was from a distance of 60 feet from the crossing, but the automobile was traveling in low gear and, of course, at a slow rate of speed. To the same effect see: Chicago, etc., R. Co. v. Sellars (1925), 5 F.2d 31;Trenholm v. Southern Pac. R. Co. (1925), *Page 586 4 F.2d 562; Engstrom v. Canadian Northern R. Co. (1924), 299 Fed. 929. We do not need to cite other cases. These are sufficient to show that the circumstances of this case are well within the "look and listen" rule. When we sustain a verdict such as here, we are saying practically that there are no facts that can be given in evidence that would require the jury to find that a plaintiff seeking damages for injuries is precluded from recovering because of his own negligence or contributory negligence, and that such a thing as negligence, or contributory negligence, does not exist as a defense as a matter of law. When we sustain the verdict herein, we are practically saying to persons traveling upon the highways in automobiles that railroad companies are their insurers, and that, without premium, or other compensation, they can drive negligently, even recklessly, over railroad tracks and into railroad trains with the full assurance that if they suffer injury from such conduct, the railroads will compensate them therefor, and, if they are killed thereby, that the railroad companies will take care of their loved ones. By sustaining such verdicts, we are encouraging negligent and reckless driving rather than putting any restraint upon the appalling situation with which the country is now confronted. If it can possibly be done, persons driving automobiles should be impressed with the thought that a railroad crossing is a place of danger, and that a railroad train, as a rule, cannot be stopped by the operators thereof for the purpose of avoiding a collision with one who drives onto the tracks, and, if they insist on doing so, they must suffer the consequences of their own negligent acts.
I have no hesitation in saying that if appellant was guilty of any of the acts of negligence, and I am not so convinced, still appellee, by reason of her contributory negligence, should not recover.
If, in the face of this record, and with the photographs *Page 587 before it, the majority of the court should hold otherwise, then certainly it is incumbent on us to see that the jury was correctly instructed as to the law, and that appellant's rights were not prejudiced by erroneous instructions.
The majority opinion quotes from Cleveland, etc., R. Co. v.Miller (1905), 165 Ind. 381, 74 N.E. 509, that: "In the consideration of an instruction, the initial point of inquiry is, was the jury misled? . . . A cause ought not to be reversed merely because it is obnoxious to verbal criticism." We may well agree to the principles of law quoted therefrom, but we are not to be misled thereby into thinking that the instruction there under consideration was an erroneous instruction, as here. The court in that case cited Richmond Gas Co. v. Baker (1897),146 Ind. 600, 45 N.E. 1049, 36 L.R.A. 683, to sustain its opinion that the instruction did not state a wrong principle of law, though stating that it did not commend it as a model, and then, after some discussion, it followed with approval the language it had quoted. The instruction there under consideration was not an erroneous instruction.
The majority opinion seems to rely chiefly upon Vandalia R.Co. v. Fry (1919), 70 Ind. App. 85, 123 N.E. 124, to sustain the conclusion therein reached. I, together with three other members of this court still sitting as members hereof, concurred in the opinion of the able judge who wrote it, and in his decision; but a more careful study of it convinces me that it should be overruled, so far as it pertains to instructions 6 and 9 given by the court of its own motion. The settled rule that we must consider instructions as a whole and not in detached parts does not apply where erroneous instructions mis-stating the law are involved, and Cullman v. Terre Haute, etc., Traction Co. (1915), 60 Ind. App. 187, 109 N.E. 52, cited to sustain the court's conclusion in the Vandalia *Page 588 case, does not apply to an erroneous instruction. In the Cullman case, the court, after saying of the instruction under consideration that it might be conceded that it was not strictly accurate in all its parts, and that it was not complete, and that it was therefore subject to criticism, then proceeded to analyze it, sentence by sentence, and to show that it was not erroneous, and, along with other instructions, stated the law, further saying that, if appellant concluded that certain matters were omitted from the instruction which might have been included, it was his duty to request an instruction containing such omissions, or that the one challenged be amplified. Thus it appears that the instruction assailed was not erroneous but incomplete. When an instruction is simply incomplete, it must be considered along with the other instructions given to determine whether the jury was properly instructed. Of course, the court is not required to state all the law in one instruction. But that such rule does not apply as to an erroneous instruction was clearly decided inIndiana, etc., Light Co. v. Armstrong (1923),79 Ind. App. 486, 138 N.E. 830, in an opinion written by the same judge who wrote the Vandalia case, and concurred in by the same members of the court that concurred in the Vandalia case. In the Armstrong case, a material issue was involved in the instruction, to wit, the negligence of appellant, while here two material issues were involved in the challenged instructions, to wit, the negligence of appellant and the contributory negligence of appellee. This court there stated that in such cases it will be presumed that the erroneous instruction was harmful, and such presumption will prevail, unless it affirmatively appears from the record that it was not prejudicial to the complaining party, and the burden is upon the party seeking to avoid such presumption to show by the record that the error was not prejudicial. After some further discussion, the court *Page 589 says: "Appellee also relies upon the settled rule that it is not necessary to state all the law applicable to a case in one instruction, but that it suffices if the instructions, taken as a whole, correctly state the law involved. This rule, however, has no application where the law, as stated in an erroneous instruction, is merely contradicted by a correct statement of the law in other instructions, which is the most that can be said in appellee's favor in the instant case. Where such contradiction exists, the harmful effect of the erroneous instruction can only be avoided by its withdrawal." Numerous authorities are cited to sustain the rule announced, in addition to which, I further cite:Monongahela River, etc., Co. v. Hardshaw (1907),169 Ind. 147, 81 N.E. 492; Cleveland, etc., R. Co. v. Powers (1909),173 Ind. 105, 88 N.E. 1073, 89 N.E. 485; Indiana Stone Co. v.Stewart (1893), 7 Ind. App. 563, 34 N.E. 1019; Chicago, etc.,R. Co. v. Lee (1902), 29 Ind. App. 480, 64 N.E. 675;Fuelling v. Fuesse (1909), 43 Ind. App. 441, 87 N.E. 700;Pittsburgh, etc., R. Co. v. Broderick (1913),56 Ind. App. 58, 102 N.E. 887; Evansville, etc., R. Co. v. Hoffman (1914),56 Ind. App. 530, 105 N.E. 788.
I am tempted to quote further from the Armstrong case, but I will refrain, with a request that the court, and all, read the opinion as the last expression of this court. If we accept the Armstrong case as the law, what will we do with the Vandalia case?
By instruction No. 3, given by the court, the jury was told that, in order to constitute a defense that would defeat the action, it must be proved that contributory negligence was the proximate cause of appellee's injuries. Instruction No. 4 was to the same effect. This is not the law. Contributory negligence, in order to defeat a recovery, does not have to be the proximate cause of the injury; it needs to be only a proximate cause of the injury. In Indianapolis, etc., Transit Co. v. Edwards (1905), 36 Ind. App. 202, 206, 74 N.E. 533, 534, the *Page 590 court, quoting with approval from Beach, Contributory Negligence, states that: "`"Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to the want of ordinary care, as, concurring or cooperating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of."'" (Our italics.)
As stated above, and as appears by the photographic pictures, appellee and her driver had a clear and unobstructed view of the approaching train, if they had looked, from the time they were within 60 feet of the track, but they both failed to look. They were both guilty of negligence, but, under these instructions, if the jury believed that appellant was guilty of any negligence that was a proximate cause of appellee's injury, then her negligence, though a proximate cause of her injury, did not prevent her recovery, for, by the instructions, she could recover unless her negligence was the proximate, the sole, cause of her injury. The case of Vandalia R. Co. v. Fry, supra, states the rule to be that, it is not necessary, in order to prevent a recovery for injuries, that contributory negligence shall have been the sole cause, but it is sufficient if it enters into and forms part of the efficient cause thereof, citing authorities to sustain the rule.
Of course, she could not recover if her negligence was the sole cause of her injury, but neither could she recover if her negligence, as a proximate cause of the injury, concurred with appellant's negligence as a proximate cause. Under these instructions, the jury had only to believe that appellant was guilty of some negligence that proximately caused appellee's injury to return a verdict for appellee notwithstanding appellee's negligence. The same principle was involved in an instruction given in the case of Indiana Stone Co. v. Stewart,supra, and the court said of it: "This instruction we must regard as *Page 591 radically erroneous. To sustain it would be to subvert the whole doctrine of contributory negligence as it has been asserted and enforced in our courts from an early day. The contributory negligence referred to in the latter part of this instruction is plainly that which is ordinarily understood to be intended by the use of this term, that is, negligence of the plaintiff which contributes as a proximate cause to the accident. That such contributory negligence defeats his right of recovery, notwithstanding the fact that the negligence of the master was also a proximate cause of the accident, is a rule firmly established by many decisions in our state."
On page 567, the court stated that: "Although the jury were, in other instructions, as in this, told that the rule was that without freedom from contributory negligence there could be no recovery, still such statements did not correct the error in this one. An instruction so radically wrong could only be cured by a withdrawal."
Instruction No. 7 told the jury that appellant could not relieve itself from the charge of negligence in alone giving the statutory signals, if, considering all the facts, it failed to use ordinary care, and that the jury might consider the circumstances and surroundings at the crossing in question, and the speed at which said locomotive was operated at said time, and determine what, if any, signals other than the statutory signals, should have been given by appellant in the exercise of ordinary care, and if it found that appellant failed to give such signals as were so required, then it might find that appellant was guilty of negligence. But the only charges of negligence in the complaint were excessive speed, and failing to sound the whistle and to ring the bell — both statutory signals. Certainly, appellee might not complain of any failure of appellant to give other signals than those which she charged were omitted in her complaint. It was prejudicial error to give this instruction. *Page 592
By Instruction No. 14, tendered by appellant and refused, the jury would have been instructed that, while it is true that the negligence of the driver of the automobile in which appellee was riding at the time of her injury will not be imputed to her, still if the jury should find it to be a fact from the evidence that the negligence of the driver of the automobile was the proximate cause of her injury, then the verdict should be for appellant. This was a general instruction as to the general effect of the drivers' negligence, and there was no other instruction which fully covered it. It should have been given.
It is my opinion that this cause should be reversed because of the insufficiency of the evidence to sustain the verdict and because of prejudicial error in the instructions.