Lake Shore & Michigan Southern Railway Co. v. Myers

On Petition for Rehearing.

Felt, J.

Appellant, in its petition for a rehearing, insists with much zeal that the court in the original opinion failed to give a sufficiently full and accurate statement of the facts on which to base an opinion and failed to consider in detail some questions presented by the briefs and record.

In view of the character of the questions urged we have with much care reexamined the several questions presented. With reference to the facts found by the jury in answer to interrogatories, in addition to the statement in the original opinion, the finding shows that the crossing where the injury occurred was at the business center of the town, which had a population of about 1,200; that appellant kept a flagman at said crossing from 6 o’clock a. m. to 6 o’clock p. m., but not after that hour; that there was much travel at said crossing after 6 o ’clock p. m.; that the train which struck plaintiff was ‘ ‘ a pick-up stock train, ’ ’ running on an irregular schedule; that appellee saw the second train approaching on the south track from the east at the time he started to cross the track; that he proceeded across the tracks at the rate of six or eight miles an hour, and it would have required about five seconds for him to cross over; that he did not hear any warning call until he 'reached and was passing over the north track; that appellee would not have heard the bell ringing in time to avoid the collision had it been ringing; that he could have heard the whistle in time to avoid the collision, had it been sounded a short distance west of the crossing; that the noise of the train on the sbuth track prevented appellee from hearing the approach of the train from the west; that after appellee advanced far enough to have seen the train approaching from the west, to escape a perilous position without crossing over the north track he *68would have been compelled to retreat across the south track in front of the oncoming train from the east; that appellee was between fifteen and sixteen years of age when injured; that if appellee had looked to the west when at the north rail of the south track, or when four feet south of the south rail of the north main track, he could have seen the train approaching which struck him; that he did not, as he approached and entered on the north main track, look to the west for an approaching train on said track; that the engine which struck him was equipped with an automatic device for ringing the bell, but the bell was not ringing when it approached nor when it passed over the crossing; that the engineer on the east-bound train did not give a crossing whistle of two long and two short blasts; that there was an arc light burning at a crossing, 160 feet away from the place of the accident.

Appellant contends that the answers which show that appellee did not look west after he started across the track, and that if he had looked to the west when at the north rail of the south track, or when four feet south of ‘the south rail of .the north main track, he could have seen the train approaching which struck him, show that appellee was negligent in attempting to cross.

8. The jury in answer to other interrogatories found that if he had looked to the west when he passed across the south main track in the rear of the caboose of the westbound train, and before stepping on the north track, he could have seen the east-bound train in time to avoid the injury. The foregoing interrogatories are contradictory, and, under a well-established rule, nullify each other and are rendered ineffective. But there are other important facts to be considered in determining whether this court can declare appellee guilty of negligence contributing to his injury.

*699. *68It is found that when he started to cross he saw the train approaching from the east, following the one that had just *69passed on the south track; that after he had advanced far enough to see the east-bound train on the north track, to escape a perilous situation, without crossing the north track, he would have been compelled to retreat across the south track in front of the train approaching from the east. These and other findings that need not be repeated show that appellee was in a position of peril from the moment it was first possible for him to see the train that struck him, and in such a situation the law does not hold a person to the same rule of deliberation and care that governs when he is not in such imminent, peril and has time and opportunity more accurately to determine his line of conduct. If he is not guilty of negligence in coming into such perilous situation in the first instance, it is a question for the jury to determine whether, under such circumstances and conditions, he used due care or was guilty of negligence contributing to his injury. Cleveland, etc., R. Co. v. Miles (1904), 162 Ind. 646, 70 N. E. 985; Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 149, 66 N. E. 615; Lowden v. Pennsylvania Co. (1908), 41 Ind. App. 614, 619, 82 N. E. 941; McIntyre v. Orner (1906), 166 Ind. 57, 69, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. 359, 8 Ann. Cas. 108; Pennsylvania Co. v. McCaffrey (1894), 139 Ind. 430, 436, 38 N. E. 670, 29 L. R. A. 104; Davis v. Chicago, etc., R. Co. (1907), 159 Fed. 10, 88 C. C. A. 488.

In this case the complaint alleges that as appellee started to cross in the rear of the caboose he saw the second train approaching from the east in such close proximity that his attention was diverted and centered on that train, and he did not see the train approaching from the west. The jury found that the train which struck him was a “pick-up” running on irregular time; that the noise of the passing train prevented his hearing the approach of the train on the north track; that he looked and listened for a train from the west before starting to cross; that he could have heard the whistle if it had been sounded for the crossing, and it *70would have prevented the accident, hut the whistle was not so sounded.

10. Conceding appellant’s contention, that it was a useless precaution to look to the west while his view was obstructed by the train on the south track, it was, nevertheless, the exercise of some care to listen for the whistle of a train on the north track. He was on a public highway where his rights were equal to those of appellant, except as to its right of priority when both needed to use the street at the same time. On this state of facts we cannot say as a matter of law that he was guilty of negligence in attempting to cross in the first instance. The question of appellee’s negligence was properly submitted to the jury. Evansville, etc., R. Co. v. Berndt (1909), 172 Ind. 697, 701, 88 N. E. 612.

It is also contended that the court erred in giving instruction No. 3, at the request of appellee, and in refusing to give instruction No. 6, tendered by appellant. The instruction given told the jury, in substance, that appellant was guilty of negligence per se if the whistle of the engine that struck him “was not sounded within eighty rods” of the crossing and the bell was not rung continuously from a point eighty rods west of the crossing.

The one refused is as follows:

“The statute of the State of Indiana requiring engines to be equipped with whistle and bell, and the whistle to be sounded and the bell rung on approaching a crossing does not apply to streets in an incorporated town. ’ ’

11. The statute (§5431 Burns 1908, § 4020 R. S. 1881) which requires the. sounding of the whistle and the ringing of the bell, also provides that it shall not interfere with any ordinance that has been or may be “passed by any city or incorporated town in this state regulating the management or running of such engines or railroads within the limits of such city or incorporated town. ’ ’ There is no showing that the town of Waterloo had, previous to the accident, passed any such ordinance as is contemplated by the *71statute. In the absence of an ordinance providing regulations differing from those prescribed by the statute, the statute applies to crossings within the limits of such incorporated town. Pittsburgh, etc., R. Co. v. Terrell (1912), 177 Ind. 447, 95 N. E. 1109, 1112, and eases cited; Cleveland, etc., R. Co. v. Carey (1904), 33 Ind. App. 275, 282, 71 N. E. 244.

12. 11. Instruction No. 3 contains a technical error in stating that the whistle should have been sounded within eighty rods of the crossing, while the statute requires it to be sounded when the engine is not less than eighty nor more than one hundred rods from the crossing. If such error could in any case be harmful, it is rendered harmless in this case by the finding of the jury that the bell was not rung nor the whistle sounded. The instruction tendered was erroneous in stating that the statute does not apply to any incorporated towns, whereas it applies to all incorporated towns and cities not having ordinances in force making provisions in conflict with the requirements of the statute.

13. The first instruction asked for by appellant was a peremptory instruction directing a verdict in its favor, and was properly refused. The third instruction asked and refused was to the effect that appellee was guilty of negligence preventing a recovery if he did not wait, after the west-bound train had passed, long enough, before attempting to cross to enable him to know that there was no train approaching from the west on the north track. On the facts of this case this was an invasion of the province of the jury, and the court did not err in refusing to give it. Appellant also complains of the refusal of the court to give instructions Nos. 7, 28 and 29 tendered by it. These instructions, in effect, told the jury that there could be no actionable negligence against appellant in failing to nlaintain a watchman at the crossing where appellee was injured unless it was shown that the town had passed an ordinance requiring appellant so to do. The complaint does not charge that *72such an ordinance had been passed or was in force at the time, but, among other acts of negligence, charges, in substance, that under the conditions shown at the crossing at the time, reasonable and ordinary care on the part of appellant necessitated the keeping of a watchman at the crossing between the hours of 6 o’clock p. m. and 10 o’clock p. m.; that it negligently failed so to do, and appellee was injured because of such failure.

The court in the fourth instruction, given at appellee’s request, in effect, told the jury that if it found the conditions'relative to the crossing and the operation of appellant’s trains to be as alleged, and that the sounding of the whistle and the ringing of the bell, as required by the statute, were not on its part the exercise of reasonable and ordinary care, and that such care required the presence of a watchman at the crossing at the time óf said injury, and appellant failed so to maintain a flagman at the crossing, and appellee’s injury was caused by such failure, he could recover, if himself free from contributory negligence. The theory of the instruction seems to be that under certain conditions, to be determined by the jury from the evidence, compliance with the statute would not absolve . appellant from actionable negligence, and to free itself from liability it may, under such peculiar and exceptional conditions, be required to do something more than comply with the statute, or with an ordinance duly passed, and authorized by statute. This doctrine is recognized in some of the states, but we do not feel called on to determine the question in this case. New York, etc., R. Co. v. Leaman (1891), 54 N. J. L. 202, 23 Atl. 691, 15 L. R. A. 426 and notes; Lathan v. Staten Island R. Co. (1907), 150 Fed. 235.

It is not contended by either party that the town had passed an ordinance requiring appellant to keep a watchman at the crossing where the accident occurred. The duty so to do, if it existed, arose because of the conditions at the *73crossing and the manner in which appellant operated its trains.

The trial court evidently held the law to he that it was proper to submit to the jury, as a question of fact to be determined from the evidence, whether, under the conditions shown, ordinary care on the part of appellant required the presence of a watchman at the crossing.

14. Conceding for the purposes of this ease, but not deciding, that the court erred in giving instruction No. 4, and in refusing to give those tendered on the subject of a watchman, as above indicated, we think the error, if any, was harmless. One act of negligence charged in the complaint is the failure to sound the whistle and ring the bell on approaching the crossing, as required by statute. Such failure constitutes negligence per se. The jury in answer to interrogatories found that the whistle was not sounded and the bell was not rung, also, that appellee could have heard the crossing whistle in time to have avoided the accident if it had been sounded. These facts establish appellant’s negligence, and show that it was the proximate cause of appellee’s injury. The liability is thus determined, unless defeated by the contributory negligence of appellee.

Instruction No. 4, given by the court, and instructions Nos. 7, 28 and 29 refused, all relate to the question of liability, and since that is shown by the special finding of facts to be fixed by reason of appellant’s failure to give the statutory warnings on approaching the crossing, it was not harmed by instructions which relate solely to the question of liability for failure to maintain a watchman at the crossing. They did not add to appellant’s burden or make it more liable than was otherwise proven, even if erroneous.

The sixth instruction given by the court and the eighth and ninth requested by appellant and refused were solely on the question of liability with reference to the lighting of the crossing. The error, if any, in the giving and refusing *74of said instructions was rendered harmless for the same reasons above stated with reference to those on the subject of a watchman.

In Elliott, App. Proc. §642 it is said: “If the answers of the jury to special interrogatories clearly show that the party suffered no substantial injury from a wrong instruction, there is no available error.”

In Cleveland, etc., R. Co. v. Newell (1885), 104 Ind. 264, 272, 3 N. E. 836, 54 Am. Rep. 312, it is said: “Without regard to whether the instruction complained of was in all respects technically and verbally accurate, since it appears from the answers to the special interrogatories that the jury found that the defendant was, in respect of the matters already alluded to, negligent, the error in the instruction, if there was any, was harmless. ’ ’

15. It is fundamental that the party appealing must show prejudicial error, to be entitled to any relief on appeal. Here the alleged erroneous instructions all relate to the question of liability. The answers clearly establish facts showing a liability for failure to give statutory warnings. The liability thus established could not be changed by any showing with reference to the lighting of the street or the maintenance of a watchman at the crossing. If the alleged erroneous instructions bore on appellee’s alleged contributory negligence, or related to the amount of damages, a different question would be presented.

The principle underlying the doctrine of harmless error has been applied in many ways. Where the record, as in this case, shows clearly that the error, if any, did not harm the complaining party, the judgment will be affirmed, notwithstanding such error. Elliott, App. Proc. §§631-652; Tracewell v. Farnsley (1886), 104 Ind. 497, 4 N. E. 162; McFadden v. Schroeder (18.94), 9 Ind. App. 49, 52, 35 N. E. 131; Cline v. Lindsey (1887), 110 Ind. 337, 341, 11 N. E. 441; Ellis v. City of Hammond (1901), 157 Ind. 267, 271, *7561 N. E. 565; Muncie Pulp Co. v. Hacker (1906), 37 Ind. App. 194, 209, 76 N. E. 740; Rink v. Lowry (1906), 38 Ind. App. 132, 137, 77 N. E. 967; Woolery v. Louisville, etc., R. Co. (1886), 107 Ind. 381, 384, 8 N. E. 226, 57 Am. Rep. 114.

Furthermore, the record shows clearly that the main controversy in the trial of this ease was over appellee’s alleged contributory negligence.

Appellant tendered 29 instructions, and the court gave 22 of them, and in all 35 instructions. The instructions, taken as a whole, were favorable to appellant. On the subject of appellee’s contributory negligence, those given at appellant’s request not only covered every phase of the question applicable to the case, but repeated and reiterated similar and kindred propositions relating to appellee’s alleged contributory negligence in such a way as to give undue prominence to the subject and obscure other questions of equal importance.

The special finding of facts on the question of appellant’s negligence makes it plain that upon the material and controlling questions of the ease the instructions were as favorable to appellant as the law will warrant and were so adroitly presented as to save to appellant every possible advantage.

16. The alleged error in the admission of evidence is likewise rendered harmless, if error, because its admission could in no way affect the question of appellant’s liability, the assessment of damages or appellee’s contributory negligence.

The petition for a rehearing is therefore overruled.

Ibach, C. J., Lairy, Adams, Myers and Hottel, JJ., concur.

Note. — Reported in 98 N. E. 654, 100 N. E. 313. See, also, under (1) 29 Cyc. 565; (2) 29 Cyc. 587; (3) 33 Cyc. 1053; (4) 29 Cyc. 628; (5) 33 Cyc. 956; (6) 33 Cyc. 1142; (7) 38 Cyc. 1927; (8) 38 Cyc. 1926; (9) 33 Cyc. 986, 1111; (10) 33 Cyc. 922; (11) 33 Cyc. 958; (12, 14) 33 Cyc. 1143; (13) 38 Cyc. 1646; (15) 3 Cyc. 387; (16) 38 Cyc. 1411. As to the duty of travelers on highways to use senses to avoid accidents at railroad crossings) see 90 Am. Dec. 780. *76As to the care and precaution necessary in crossing a railroad track, see 24 L. Ed. U. S. 403. On the question of the care required of one in sudden emergency, see 37 L. R. A. (N. S.) 43. As to the duty to stop, look and listen after entering on first track see 17 L. R. A. (N. S.) 505. For the duty of a traveler approaching railway crossings as to> place and direction of observation, see 37 L. R. A. (N. S.) 136.