Nichols v. Baltimore & Ohio Southwestern Railroad

Comstock, J. Appellant, the widow of Charles L. Nichols, deceased, as administratrix, brought this action against appellee, to recover damages for the death of the decedent, caused by the alleged negligence of the defendant. The complaint is in two paragraphs. The accident occurred at a public highway crossing. The deceased and his son Were riding in a road wagon drawn by two mules. The negligence attributed to the appellee in the first paragraph is (1) failure to give the statutory signals, (2) failure to check the speed of the train, and (3) unnecessarily giving the danger signals and ringing the bell of the locomotive with knowledge that the team was unmanageable. The negligence charged' in the second paragraph is (1) failure to give the statutory signals, and (2) giving the danger signals and ringing the bell needlessly with knowledge that the team was unmanageable. Appellee answered by general denial, and the trial resulted in a verdict and judgment for appellee. The only error assigned is the overruling of appellant’s motion for a new trial. Appellant relies for reversal upon the giving by the court, of its, own motion, of certain instructions, and of other instructions given at the request of appellee. We shall consider these instructions, following the order in which they are discussed in appellant’s brief. Instructions one and two given by the court of its own motion may be considered together. Instruction one' purports to state the averments of the complaint as to the character of the action, the corporate existence of the defendant, date of the accident, the negligence of the defendant, and that the deceased was without-fault. The second instruction states the nature of the answer, that it is a general denial, that before plaintiff can recover she must prove by a fair preponderance of the evidence all the material [232] allegations in one or more of the paragraphs of the complaint. The complaint contains no averment that the plaintiff was without fault, neither was such averment necessary. §359a Burns 1901. The second instruction, stating that the defendant had answered by general denial, and that this answer put the burden upon the plaintiff of proving by a preponderance of evidence all the material allegations of at least one paragraph of the complaint, was well calculated to give the jury the impression that the burden of the issue of contributory negligence was upon the plaintiff. Instruction two and one-half stated it to be the law that if, on the approach of a railroad train to a highway crossing, the engineer in charge of the engine observed a team near the crossing, evidently frightened and becoming unmanageable, it was the duty of the engineer to refrain from giving signals or doing any act that tended to increase the fright of the team; and if, by reasonable exertion, he could avoid the accident by stopping the train, it was his duty to do so. If, however, the train had reached a point where the law required signals to be given, and it is uncertain whether or not the train can be stopped before reaching the crossing, he must give the signals. It is claimed that this instruction treats the signals given by the engineer immediately before the accident and after the team and crossing came into view of the engineer, which was less than five hundred feet from the crossing, and not eighty to one hundred rods from the crossing, as signals required by law, while the law requires no signals to be given less than eighty rods from the crossing; that in the case at bar the place for giving the statutory signals was passed before the deceased and the crossing and the team came into the engineer’s view. Both paragraphs of the complaint charge a failure to- give the statutory signals. With the statement of the duty of the engineer when approaching a frightened [233] team the appellant has no reason to complain. There was no error in giving it. Against instruction five given at the request of appellee the point is made that it is not applicable where the deceased was involuntarily drawn upon the crossing by a frightened team, and was not attempting to cross the railroad; and that it assumes that the deceased Went voluntarily upon the track. The instruction, states generally the duty of a traveler in approaching a point upon a highway where a railroad track is crossed upon the same level to proceed with caution, to look and listen. The instruction does not, as we understand it, make the assumption charged. As an abstract statement of the law it is correct, with the exception of the statement that he must stop. Whether the traveler must stop before he attempts to cross must depend upon the facts of each particular ease. This instruction could not have prejudiced the rights of the appellant in the light of the undisputed evidence that the deceased stopped, looked, and listened. Instruction number ten, complained of, is as follows: “The defendant had the right to run its locomotive engine over its railroad at the time it did when it collided with the wagon of the plaintiff’s decedent, and at any time, day or night, that it pleased, and this the plaintiff is held to know, and the plaintiff’s decedent to have known at the time of the collision.” Upon the giving of general signals appellee had the right to operate its trains. The right of appellee to operate its trains was subject to the restrictions imposed by law and reasonable prudence. Instructions numbered fourteen and fifteen assume that decedent voluntarily drove upon the track, and are open to this objection which is made to them. In instruction number sixteen the jury are told that “the law presumes that the injuries to plaintiff’s decedent, of which he died, if yon find he did die from injuries received [234] by collision with defendant’s engine at a highway and railway crossing, were brought about by his own negligence.” We have set out the opening sentence of the instruction. It is not modified by anything that follows. This was error. The instruction, we think, is contrary to the spirit of recent legislation and decisions. §359a Burns 1901, §284a Horner 1901; Lawson, Presumptive Ev. (2d ed.), 153; Malott v. Hawkins, 159 Ind. 127; Southern Ind. R. Co. v. Peyton, 157 Ind. 690; Texas, etc., R. Co. v. Gentry, 163 U. S. 353, 366, 16 Sup. Ct. 1104, 41 L. Ed. 186; Baltimore, etc., R. Co. v. Landrigan, 191 U. S. 461, 24 Sup. Ct. 137, 140, 48 L. Ed. 262; Chesapeake, etc., R. Co. v. Steele, 84 Fed. 93, 98, 29 C. C. A. 81; Norton v. North Carolina R. Co., 122 N. C. 910, 928, 29 S. E. 886. The presumption is that the decedent was without fault, his negligence being a matter of defense. Instructions numbered twenty-one, twenty-two, and twenty-three are correct as abstract statements of the law. We are of the opinion that they were harmless even if it be conceded that they are inapplicable as claimed by appellant. Instruction number twenty-four is as follows: “If the engineer in charge of defendant’s locomotive engine, as he approached the crossing, going at a high rate of speed usual to his train, and when two or three hundred feet from the crossing he saw Charles L. Nichols and his son, in a wagon drawn by two mules, approaching the crossing, and saw that his team did not stop when at a safe distance from the crossing, but continued going toward the crossing, the said engineer was justified in sounding the alarm signals of the locomotive, and it was his duty to do so, in order, if possible, to prevent the team from going onto the crossing in front of the locomotive.” Without qualifications this instruction is too broad. It will not be contended that if the engineer discovered that the alarm signals were frightening or adding to the fright of the team, and making them unmanageable, that it would still be his duty as a matter of [235] law to continue giving the signals. Whether the engineer is justified in sounding an alarm signal after discovering the team is to be determined by the jury upon proper instructions under all the facts and circumstances proved. It is contended by appellee that the instructions can not be considered (1) because no seal is affixed to the special bill of exceptions in which they are set out. A seal is not necessary. The record is duly attested by the general certificate of the clerk with the seal affixed. (2) That the bill of exceptions shows that all of the instructions given to the jury were not copied into the special bill of exceptions. It is pointed out in this connection that appellant states that the court modified instruction number six requested by appellee among those given by the court, but appellee states that said instruction does not appear in the record. As the modified instruction might- have been given under another number, this is not conclusive that it is not in the record, in the face of the statement in the bill of exceptions that it contains all the instructions given. (3) That an attempted exception to instruction number eight is not properly reserved. Said instruction is not discussed, and any error which might have been based thereon is waived. (4) That all the instructions requested are not in the bill. Objections are only made to the instructions given. We conclude that the exceptions to the instructions are properly saved. The judgment is reversed, with instructions to sustain appellant’s motion for a new trial.