The appellant sued appellee to recover damages for the death of his intestate, alleged to have been caused by the negligence of appellee. The cause was submitted to a jury for trial, and over appellant’s objection and exception the court gave to the jury a peremptory instruction to return a verdict in favor of appellee. This action of the court presents the only question in the record in this court.
The negligent act complained of was that the appellee ran its train of cars through a densely populated part of the city of Indianapolis, at a dangerous rate of speed, and in violation of the provisions of a speed ordinance of the city, which train in its passage through the city struck and killed appellant’s intestate while she was crossing the appellee’s railway track where the same intersects Roach street in said city.
1. The evidence in the case showed witho.ut dispute that appellant’s intestate was struck and instantly killed by appellee’s engine drawing a passenger-train over its road; that th'e accident occurred in a populous part of the city of Indianapolis, at a point where appellee’s track intersects Roach street, one of the public streets of the city; that the engine which struck and killed the deceased was running at the rate of from forty to fifty miles per hour, and that there was in force at the time an ordinance of said city prohibiting persons in charge of an engine or train of cars from permitting the same to be run within the city limits at a greater rate of speed than four miles per hour. This evidence fully established the charge of negligence made in the
2. The instruction given by the court withdrawing the case from the jury is defended on the ground that the evidence, without dispute, showed that the deceased was guilty of contributory negligence proximately causing her death. Appellee’s proposition, that it is a duty of the trial court to give the jury a peremptory instruction, where the evidence fails to make out a prima facie case for the plaintiff, or where it would not support a verdict if returned in its favor, correctly states the law.
3. And we also fully recognize the rule contended for by appellee, and so often announced by all the courts of last resort in this country, some of which are cited in appellee’s brief, to the effect that it is the duty of a traveler on a public highway approaching a railroad crossing to use his sense of sight and hearing to protect himself from danger, and that, if the situation is such that a traveler on the highway could see or hear an approaching train in time to avoid collision, it will be presumed against him, if injured by a collision with the train, either that he did not look or listen for its approach, or that, if he did, he failed.to heed what he saw or heard, and that under such circumstances, if injury results to the traveler, he cannot recover against the railroad company for the injury sustained by the collision, no matter how negligently its servants may have operated the train, not on the ground that the negligence of the servants of the railroad company was not a proximate cause of the injury, but on the ground that the traveler’s negligence was a concurring proximate cause contributing to the accident.
4. This doctrine is too well settled to need citation of authorities in its support, and we do not understand that it is seriously disputed.
6. The appellee, however, had the burden of establishing these assumed facts. It is unnecessary, under the law as it now stands in this State, for the plaintiff in an action against a railroad company for injuries, or for death sustained in a crossing collision, to go into the details of the surroundings of the scene of the accident, to show that obstructions were or were not present that would or would not prevent the person injured from seeing or hearing approaching trains, unless such facts are necessary to prove the defendant’s negligence charged in the complaint. They were not necessary to prove the alleged negligent acts in this case.
7. The fact that there were no obstacles or obstructions in the way that would have prevented the appellant’s intestate from seeing the engine that struck her was a fact essential to be shown to . establish contributory negligence. The burden of proving the absence of ob
The evidence is meager and unsatisfactory upon the question of the surroundings of the accident. There is no evidence as to the movements of the deceased from the time she left the corner of Burton avenue and Roach street, a distance of perhaps two or three hundred feet from the railway, until the very instant the locomotive struck and killed her. The evidence shows that Udell street is three squares — a distance of some ten or twelve hundred feet — north of Roach street; that the railway runs north and south, and Roach street, east and west; that the train which struck and killed appellant’s intestate was a passenger-train and approached from the north.
But one witness, Prather, was examined with reference to the approach to the railroad crossing on Roach street. His testimony is very meagre; it does not undertake to show what the conditions were at the time the accident happened. In his examination in chief he was asked: “ Q. About how many houses are there in the first square north of Roach street? A. There is only one house, and there is a shoe shop on the rear end, right on the corner of the alley. Q. Could you get a clear view of the railway north of there? A. You could not.” On cross-examination he testified on the subject as follows: “Q. I believe you stated that persons coming along Roach street could not see until they passed the shoe shop. A. I do not think they could. Q. There was nothing to prevent their seeing after they passed the shoe shop, was there? A. Well, the distance was not very great, but I should not judge there would be anything to obstruct their view. Q. There is nothing to obstruct their view to the north of a train coming down? A. No, sir. Q. When you get past the shoe shop you can see clear up past Udell street? A. You can see after you get into the center of the track. The elevation of the track is higher than where you walk. ’ ’
This is all that appears in the evidence upon this subject. The witness Prather did not pretend to know what obstructions, if any, intervened between the corner of the shoe shop and the appellee’s railway track at the time of the accident. His testimony was not directed to that particular time, nor does the agreement cover the time the accident occurred. It matters not what may be or may have been the condition of the railway approach, the ability of persons to see approaching trains, or the character of obstructions to the view of travelers on the street approaching the crossing at any time except at the time the deceased was killed. The question is: what was the condition with reference to obstructions at that time, and could she have seen the approaching train ?
9. It is true that one or two witnesses testified -to having heard the whistle when the train was somewhere between the bridge and Thirtieth street. Where the bridge was is not indicated — evidently above Thirtieth street. Thirtieth street was several blocks beyond Udell street, and out of sight of the crossing. Many of the witnesses who testified did not hear the whistle, and there is not sufficient evidence on this subject to justify the court in withdrawing the case from the jury, and to have made a case of contributory negligence against the deceased, even if she did hear the whistle sounded when the train was out of sight, at an uncertain distance from the crossing, and was able to recognize and know that it was a train approaching the crossing. But there is nothing in the evidence that would compel the jury to find that the deceased, if she did hear the whistle, would have known that it was an approaching train on appellee’s road.
Judgment reversed.