A complaint alleged that defendant's passenger train was struck by codefendant's train while crossing codefendant's track, injuring a passenger on defendant's train; that defendant had the right of way to cross by the signals exhibited by the flagman employed at the crossing of the tracks by defendants; that defendants maintained a joint system of signals to control the operation of trains over the crossing; that, when the signal was exhibited for defendant's train to cross, it indicated that the codefendant could not cross; that the servants of the codefendant in charge of the train could have seen the signal; and that they, in the face of the signal, backed the train over the crossing, colliding with defendant's train. Held, to sufficiently charge the codefendant with negligence.

3. SAME.

The complaint was not bad as against the objection that it failed to show unity of action on the part of the defendants.

4. SAME-PROXIMATE CAUSE.

Where a train of one company had the right of way to cross the track of another company by the signals given by the flagman employed by the two companies to control the operation of the trains at the crossing, the act of the latter company in backing its train against the train of the former while crossing the track was the proximate cause of an injury to a passenger of the former, received in consequence of the collision between the two trains. 5. SAME-RECOVERY BY PASSENGER.

A passenger on the train of one company may recover from another company for an injury resulting from a collision at a crossing, caused by the negligent backing of a train of the latter into a car of the former occupied by the passenger, though the company undertaking to carry the passenger was negligent.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, § 928.] 6. APPEAL-RULINGS-REVIEW.

The court on appeal will only review rulings in giving and refusing instructions to which objections have been made and supported by argument.

7. SAME-EXCEPTIONS-SUFFICIENCY.

Exceptions to instructions must be taken severally, and where instructions are excepted to as a whole the exception will not be available, unless all the instructions are erroneous. 8. TRIAL INSTRUCTIONS GIVING UNDUE PROMINENCE TO FACTS.

Where, in an action against a railway company for backing its train into a passenger train of another company, the evidence showed that defendant was backing its train in violation of the signal given by the flagman employed by the two companies to control the operation of trains at the crossing, and that such backing was the proximate cause of the injury complained of, an instruction authoriz ing a recovery on finding that defendant negligently backed its cars into the train of the other company and injured a passenger there

10. TRIAL INSTRUCTIONS-ELIMINATION ISSUES.

OF

An instruction, in an action against two railroads for injuries received by a passenger of one of them in a collision between trains at a crossing, that plaintiff is required to prove by a preponderance of the evidence that the negligence of defendants, or either of them, was the proximate cause of the injury, and that he is not required to prove freedom from contributory negligence, was not objectionable as eliminating the question of proximate cause and making one railroad responsible, though the evidence showed that the other's negligence was the proximate cause. 11. RAILROADS PLOYÉS. Where signals given to two companies crossing each other's tracks by the flagman employed by them to control the operation of trains at the crossing gave to one company the right to pass over the crossing, it was the duty of the other company, in face of such signal, to refrain from backing its train over the crossing while the former train was passing, and it must stop, look, and listen for the other train before entering on the crossing.

COLLISIONS

- CARE OF EM

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 928-932.] 12. SAME JOINT LIABILITIES.

Where a passenger was injured at a railroad crossing by the collision of trains, he may recover from both companies, if their joint negligence caused the collision.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 854, 928.] 13. SAME-EVIDENCE-SUFFICIENCY.

Evidence in an action for injuries received in a collision at a railroad crossing examined, and held to support the finding that plaintiff was injured as claimed by him.

Appeal from Circuit Court, Clark County; Jacob Herter, Special Judge.

Action by Edward A. Kleespies against the Baltimore & Ohio Southwestern Railroad Company and another. From a judgment for plaintiff against the Baltimore & Ohio Southwestern Railroad Company, it appeals. Affirmed.

C. L. & H. E. Jewett, for appellant. J. W. Fortune and M. Z. Stannard, for appellee.

WILEY, J. Suit against the appellant and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company to recover damages for personal injuries sustained by appellee through their alleged negligence. A trial by jury resulted in a verdict in favor of appellee as against appellant, and in favor of its codefendant. Appellant's motion for a new trial was overruled, and judgment pronounced upon the verdict. The Pittsburgh Company is not made a party, but was served with no

tice of the appeal and has filed a brief. Appellant's demurrer to the first and second paragraphs of the amended complaint was overruled, and such ruling, together with that of overruling the motion for a new trial, are relied upon for reversal.

Omitting the formal parts of the first paragraph of the amended complaint, it is averred that appellant owned and operated a line of railroad over and upon Broadway street in the city of Jeffersonville, and that said street runs north and south; that the Pittsburgh Company owned and operated a line of railroad over and along Sixth street in said city, and that the two railroads cross each other at the intersection of said two streets; that at said crossing the two railroad companies employed a flagman, or watchman, to signal their trains to stop and start on' said streets as they approached the crossing before passing over the same, and for that purpose said flagman employed lights, targets, and a semaphore, owned and furnished by said companies; that it was the duty of both of said companies, their engineers, agents, etc., in charge of their trains, to obey said signals and conform to the same as displayed and given by the watchman, in running their trains at said crossing; that on January 18, 1904, appellee was a passenger upon one of the trains of the Pittsburgh Company, and by reason thereof was entitled to ride thereon from the city of New Albany to the city of Jeffersonville; that he was on said train when it approached said crossing; that the train was, by the watchman, signaled to stop west of the crossing, by displaying a red target light-it being 10 o'clock at night -until one of appellant's trains had passed over said crossing; that the engineer, agents, etc., in charge of the train on which appellee was a passenger, obeyed said signal, and stopped said train, until signaled by the flagman to pass over the crossing; that the train upon which he was riding carelessly attempted to pass over said crossing while appellant was attempting to back over the crossing from north to south, without first ascertaining that there was no other train or locomotive in sight approaching and about to pass over, which backing train the engineer, etc., of said Pittsburgh train could have seen, if they had looked, in time to have avoided a collision; that after appellant's train had passed over the crossing from north to south, the engineer, employés, etc., in charge of the same, carelessly and negligently attempted to back said train over the crossing from south to north, without first ascertaining that there was no other train or locomotive in sight approaching and about to pass over the crossing, which passing train of the Pittsburgh Company appellant's agents and employés in charge of its train, could have seen if they looked, and without first receiving the proper signal, which would have been the displaying of a white light by the flagman, to back their train over the crossing,

and in violation of a red-light signal from the watchman, which so given warned appellant of the approach of a train on the track of the Pittsburgh Company; that the last-named train was about to pass over said crossing, and had the right of way, and that appellant's train was to remain north of the crossing until signaled by the flagman, by his displaying a white light for it to cross; that by the careless, negligent, and unlawful acts of said companies, said two trains collided with each other at the crossing; that the passenger coach in which appellee was seated was struck with great force, throwing him from his seat between two other seats, by which his hip was dislocated, his back and side were bruised, and he was otherwise injured, etc.

The second paragraph of the amended complaint is very similar to the first, except that the charge of negligence is differently expressed, as shown by the following: "That at said crossing, on said date, said defendants, through and by their engineers, agents, and employés, unlawfully, carelessly, and negligently attempted to run their locomotives with cars attached at, upon and over said crossing, and in so attempting to pass over said crossing said trains with locomotives and cars attached ran into and upon each other with great force and violence, injuring the plaintiff as hereinafter mentioned. That said unlawful, careless, and negligent acts of said defendants, and each of them, aforesaid, at said crossing, consisted in a failure on the part of said defendants, through and by their engineers, agents and employés, in charge of said trains, to stop and start their locomotives with cars attached in obedience to the signal or signals of their flagman, or watchman, at said crossing, before and as they approached the same; a failure on their part and on the part of each of them to first ascertain before passing over said crossing that there was no other train or locomotive in sight approaching and about to pass over said track and crossing or occupying the same; and a failure on their part and on the part of each of them to look and listen for the approach of a train of cars with locomotive attached at said crossing occupying the same or about to pass over the same."

The learned counsel for appellant suggest in a very able brief that the lower court overruled the demurrer because the complaint charged the negligent backing of appellant's train while the train of the Pittsburgh Company was passing over the crossing. It is urged, however, that the complaint is bad, and the demurrer should have been sustained, because it appears by the specific statement of facts that there was no common purpose or unity of design on the part of the two railroad companies; that appellee's injury was not the natural consequence of appellant's negligence; and, finally, that the negligence of the Pittsburgh Company was

the proximate cause of the injury. Counsel further argue that the trial court should have tested the complaint by the specific averments thereof, without reference to the general allegation of negligence against the appellant. The proposition of law; as stated by counsel, is correct, as declared by the authorities. Scheiber v. United Telephone Co., 153 Ind. 609, 55 N. E. 742. The specific acts relating to the acts of appellant which are charged to be negligent are that it backed its train against a passenger train of the Pittsburgh Company while the latter company, by the signal exhibited by the flagman, had the right of way, and by reason thereof was entitled to pass over the crossing; also, the further fact that, when the signal for the Pittsburgh Company's train to pass was exhibited, appellant's servants in charge of the backing train could have seen the signal if they had looked, and which signal conveyed to them the important information that the Pittsburgh Company had the right of way, and was a warning to appellant's servants that they had no right, in the face of such signal, to back the train over the crossing. These are the material facts upon which the complaint seeks to fasten negligence upon appellant, and in our judgment, in this regard, make the complaint invulnerable to the attacks of the demurrer.

Another objection urged to the complaint is that as between the two railroad companies there was no concert or unity of action and common design, and "that parties whose independent acts unite to produce certain consequences are not jointly liable." In support of the latter proposition we are cited to the case of West Muncie Strawboard Co. et al. v. Slack et al., 164 Ind. 21, 72 N. E. 879, where it is said: "It is probably true that an action at law for the recovery of money damages; as distinguished from a suit in equity, cannot be maintained jointly against various tort feasors among whom there is no concert or unity of action and no common design, but whose independent acts unite in their consequences to produce the damage in question.

Each sepa

rate wrongdoer is chargeable with his own acts alone, in the absence of a joint purpose among the participants." While the abstract proposition of law as declared in the case Just cited is abundantly supported by the authorities as applied to the facts in this case, it is not applicable. By the averments of each paragraph of the amended complaint, it is shown that these two railroad companies maintained a joint system of signals to control the operation and running of trains over this crossing. The flagman was their joint servant. Appellant's servants had passed over the crossing to a point north of it, and when it had reached that point the flagman adjusted the signal, which deprived them of the right to make further use of the crossing until another signal should be given, which would signify

to appellant's servants that they might again move their train over the crossing. It is specifically charged that with the signal against them appellant's servants backed the train toward the crossing, by reason of which it collided with the passing train of the Pennsylvania Company.

It is contended by counsel for appellant that the complaint charges that the Pennsylvania Company carelessly and negligently attempted to pass over the crossing while appellant's train was attempting to back over it, without first ascertaining that there was no other train in sight approaching and about to pass over, which backing train of appellant the Pennsylvania Company's servants in charge of its train could have seen if they had looked, and thus have avoided the accident; also that it affirmatively appears that the proximate cause of appellee's injury was the negligent acts of the Pennsylvania Company as just recited. Counsel argue that such negligent acts of the Pennsylvania Company were an independent intervening cause, which extended the consequences of appellant's negligence far beyond any result which might have been reasonably anticipated or foreseen, and hence for such consequences appellant is not liable. From our viewpoint appellant cannot shield itself behind the negligence of the Pennsylvania Company, if it was guilty of any acts of negligence which led to the injury, but it must meet and defend against its own negligence. It is apparent that the accident would not have occurred if the Pennsylvania Company's train had not attempted to pass the crossing when the signal was given to it that the way was clear. The signal was as binding upon appellant as it was upon its codefendant. Assuming, therefore, and it is a reasonable assumption in the face of the facts pleaded, that the Pennsylvania had the right of way and was entitled to the crossing, it necessarily follows that the negligent backing of appellant's train was the proximate cause of the injury. In Cincinnati, etc., Ry. Co. v. Worthington 30 Ind App. 663, 65 N. E. 557, 66 N. E. 478, 96 Am. St. Rep. 355, it was said: "Negligence may be the proximate cause of an injury of which it is not the sole or immediate cause. It is enough for it to be the efficient cause which set in motion the chain of circumstances leading up thereto." Here as it seems to us from the facts pleaded, the efficient cause of the injury was the backing of appellant's train.

If it be conceded that the facts pleaded show negligence on the part of both companies, still the complaint would be good as against appellant; for it is the law that a passenger on the train of one railroad company may sue and recover from another railroad company for an injury resulting from a collision at a crossing, caused by the negligent backing of a train of the latter into a car of the former occupied by the in

jured party, even though the company that had undertaken to carry him was guilty of negligence. Pittsburgh, etc., Ry. Co. v. Spencer et al., 98 Ind. 186. If it appears from the facts pleaded that the proximate cause of the accident was the backing of appellant's train against the train of the Pennsylvania Company, while it was passing over the crossing under a signal that it had the right of way, then the complaint is sufficient as against it. Proximate cause has been defined as "such a cause as operates to produce particular consequences, without the intervention of any independent unforeseen cause, without which the injuries would not have occurred." Am. & Eng. Enc. Law, vol. 21 (2d Ed.) p. 485. "By 'proximate cause' is intended an act which directly produced, or concurred in producing, the injury." Claypool v. Wigmore, 34 Ind. App. 35, 71 N. E. 509. It is plainly evident, under the averments of the complaint, that the act of appellant in backing its train directly produced the injury, and without it the injury would not have occurred. This brings it within the rule defining proximate cause. In the case of Cleveland, etc., Ry. Co. v. Gray, 148 Ind. 266, 46 N. E. 675, the complaint was, in its essential characteristics, very much like the one before us, and it was held good. We do not refer to it at length, but suggest that it is in point and instructive here. From these considerations we have reached the conclusion that there was no error in overruling the demurrer.

The

Appellant's motion for a new trial is predicated upon alleged errors in giving and refusing to give certain instructions and in overruling its motion for a new trial. Of the many instructions complained of, counsel for appellant have singled out and discussed but few of them, and under the rule it is only necessary for us to consider those to which objections have been made and such objections supported by argument. The instructions are brought into the record by bill of exceptions. The Pittsburgh Company, one of the defendants below, timely tendered to the trial court a series of eight instructions, all of which were given. bill of exceptions shows that "to the action of the court in giving these instructions" the defendant the Baltimore & Ohio Southwestern Railroad Company, at the time excepted. It appears, therefore, that the exception taken to this series of eight instructions were in gross, and not taken severally. It is the settled rule in this state that exceptions to instructions cannot be taken in gross, but must be taken severally, and where the instructions are excepted to as a whole the exception will not be available unless all the instructions were erroneous. Musgrave v. State, 133 Ind. 297, 32 N. E. 885; Kelly v. John, 13 Ind. App. 579, 41 N. E. 1069. Of these eight instructions appellant only complains of the fourth and seventh. Under the rule just stated, if either

the fourth or seventh instructions is erroneous, the error is not available to appellant, unless the entire series of the instructions are erroneous. Without adverting to any of the others of these instructions, or setting them out, either in abstract or in detail, we are clear that some of them, at least, correctly state the law, and, this being true, we cannot consider those that appellant claims are erroneous.

The appellee tendered, and the court gave, the following instruction, to wit: “(4) If you find from the evidence that the Baltimore & Ohio Southwestern Railroad Company carelessly and negligently backed its cars into the passenger coach of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company as the same was crossing the intersection of the tracks at Sixth and Broadway streets in the city of Jeffersonville, and you further find that the plaintiff was without fault at the time of the injury complained of, your finding should be against the defendant the Baltimore & Ohio Southwestern Railroad Company and in favor of the plaintiff." The objection urged to this instruction is that it directed the jury to find a verdict for the appellee, if they believed from the evidence that appellant was guilty of negligence in the single act of its backing its cars into the Pennsylvania train. It is urged that this instruction, in this regard, was erroneous, because it gave undue prominence to a single feature in the case, to the exclusion of others. Taking this instruction in connection with other instructions, where all the features or facts were fairly stated to the jury, we are unwilling to say that there was any error in giving it. From all the facts disclosed by the record we are very strongly impressed that the sole cause of appellee's injury was the backing of appellant's train against the train of the Pennsylvania Company as it was passing over the crossing. This becomes more plainly manifest in view of the facts which relate immediately to the collision, and these facts are undisputed. It fairly appears that appellant's train passed over the crossing, and when it stopped the rear end of its rear car was about 10 feet from the crossing. The flagman then displayed the white light as an indication to the Pennsylvania Company that its train had the right of way, and displayed the red light to appellant company, which indicated that it had no right to the crossing. When the white light was displayed the Pennsylvania Company's train started to pass the crossing. Its locomotive, tender, and one passenger coach passed safely over; the latter being slightly scratched at the rear end by the rear car of appellant's train. The second coach on the Pennsylvania train had passed about one-fifth of its length before the impact of the two trains which produced the injury. It seems to us that these facts conclusively show that appellant was backing its train in the face of the red light against it, and that

such backing was the proximate cause of the injury. There was no error in giving the instruction.

The court upon its own motion gave a series of instructions to the fifth, sixth, and eighth of which appellant complains. The fifth is as follows: "In an action for personal injury contributory negligence is such negligence on the part of the plaintiff as helped to produce the injuries complained of, and if proven by a preponderance of the evidence the plaintiff forfeits the right of recovery. The plaintiff is required to prove by a preponderance of the evidence that the negli gence of the defendants, or of either of them, was the proximate cause of his injuries, but the plaintiff is not required to prove his freedom from contributory negligence. Such defense may be proved by the defendants under the general denial, and must be established by a like preponderance of the evidence." Counsel have not pointed out any tenable objection to this instruction. They criticise it because the court stated to the jury that, if proven by a preponderance of the evidence that appellee was guilty of contributory negligence, he "forfeits the right of recovery." As to that part of the instruction counsel say: "Up to what point the plaintiff had a right of recovery, and just where his contributory negligence would 'forfeit' this right, might be made an interesting subject of discussion." The instruction under consideration correctly states the law upon the question of contributory negligence. It is also urged that the instruction is objectionable because it told the jury that the appellee was required to prove by the preponderance of the evidence that the negligence of both defendants, or either of them, was the proximate cause of his injuries. It is suggested in argument that the instruction eliminated the question of proximate cause entirely from the case and made the appellant responsible, if the evidence showed that the Pennsylvania Company's negligence was the proximate cause. We do not so construe the instruction.

The sixth instruction referred to is as follows: "A railroad corporation must exercise ordinary care when approaching a crossing of another railroad, and, when means are not provided by which a collision at a railroad crossing is rendered impossible, the rule to stop, look, and listen is not less imperative on a train approaching such crossing than upon a traveler about to approach a railroad crossing, who must stop, look, and listen for approaching trains before entering upon such crossing." The objection urged to this instruction is that it told the jury, in substance, that a railroad company, in backing its train over the crossing of another railroad company, was required to observe the same care that a traveler about to approach a railroad crossing must before crossing over the road. As applied to the facts in this case, we do not think the instruction is wrong. If it is

subject to criticism, it is because it is not as drastic as it might be. In it the court told the jury that a railroad company "must exercise ordinary care when approaching the crossing of another railroad," etc. We think the court would have been justified in saying to the jury that it was the duty of such railroad company to exercise the highest degree of care under such circumstances. The facts here show that this railroad crossing was dangerous and unsafe. The evidence does not show that an interlocking switch was maintained, whereby accidents of this character might have been averted. Where human life is at stake, we see no reason why those who put it in jeopardy, whether it be a railroad corporation or not, should not be charged with the exercise of the highest degree of care, so as to avert danger and save life. In this case, where the signals given to both companies by their servant gave to the Pennsylvania Company the right to pass over the crossing, it was the duty of appellant, in the face of such signal, to refrain from undertaking to back its train over the crossing while the Pennsylvania train was passing, and the degree of care it was required to exercise was not too strongly stated in the instruction.

The eighth instruction informed the jury that, if a passenger was injured at a railroad crossing by the negligent collision of trains, he could recover damages from the company whose train negligently ran into the train upon which he was being carried, although the company carrying the passen ger was guilty of negligence, and also that, if the joint negligence of both companies caused the collision, both of them would be liable. This is a correct statement of the law. Pittsburgh, etc., Ry. Co. v. Spencer, 98 Ind. 186.

Appellant complained also because the trial court refused to give certain instructions tendered by it. Counsel have not discussed them, but merely say: "To discuss these instructions refused in detail would be merely to state the converse of the argument already made against those given, and could serve no good purpose." Counsel having declined to support these instructions by argument, we are not called upon to consider them. Upon the merits of the case, under the facts disclosed by the record, counsel for appellant say: "So far as the appellant is concerned, this action has at all times been a bold fraud, thus far successful. All the circumstances, and a great preponderance of the testimony worthy of belief, indicates that the injury complained of was simulated at the time of the occurrence and that its continuance is feigned." Counsel also say that, if there ever was any injury, the party liable was the Pennsylvania Company, "whose passenger he was, yet during the trial the appellee never intended to hold that company responsible." In view of the earnest appeal of counsel for a reversal of the judgment, both in their brief and in oral argument,