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(39 Ind. App. 161)

of, who was without fault, was not objectionBALTIMORE & O. S. W. R. CO. v. KLEES able as giving undue prominence to one feature PIES. (No. 5,611.)1

of the case.

9. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE (Appellate Court of Indiana, Division No. 2

INSTRUCTIONS.
Feb, 23, 1906.)

An instruction in an action for personal 1. NEGLIGENCE-PLEADING-SUFFICIENCY ON injury that contributory negligence is such DEMURRER.

negligence on plaintiff's part as helped to proThe sufficiency of a complaint in an action duce the injury complained of, and, if proven for negligence as against a demurrer must be by a preponderance of evidence, plaintiff fortested by the specific averments thereof, with feits his right of recovery, correctly states the out reference to the general allegations.

law on the question of contributory negligence. [Ed. Note. For cases in point, see vol. 37,

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, 174.]

Cent. Dig. Negligence, 88 83, 382-394.) 2. RAILROADS-COLLISIONS-INJURY TO Pas 10. TRIAL-INSTRUCTIONS-ELIMINATION OF

SENGER — NEGLIGENCE-COMPLAINT-SUFFI. ISSUES.
CIENCY.

An instruction, in an action against two A complaint alleged that defendant's pas railroads for injuries received by a passenger senger train was struck by codefendant's train of one of them in a collision between trains at while crossing codefendant's track, injuring a a crossing, that plaintiff is required to prove passenger on defendant's train; that defendant

fendant's train: that defendant | by a preponderance of the evidence that the neghad the right of way to cross by the signals | ligence of defendants, or either of them, waz exhibited by the flagman employed at the cross 'the proximate cause of the injury, and that he ing of the tracks by defendants; that defend

is not required to prove freedom from contribants maintained a joint system of signals to utory negligence, was not objectionable as elimcontrol the operation of trains over the cross inating the question of proximate cause and ing; that, when the signal was exhibited for

making one railroad responsible, though the defendant's train to cross, it indicated that the evidence showed that the other's negligence was codefendant could not cross; that the servants the proximate cause. of the codefendant in charge of the train could 11. RAILROADS — COLLISIONS -CARE OF EMhave seen the signal; and that they, in the face PLOYÉS. of the signal, backed the train over the cross Where signals given to two companies ing, colliding with defendant's train. Held, to crossing each other's tracks by the flagman emsufficiently charge the codefendant with negli ployed by them to control the operation of gence.

trains at the crossing gave to one company the 3. SAME.

right to pass over the crossing, it was the duty The complaint was not bad as against the of the other company, in face of such objection that it failed to show unity of action

| to refrain from backing its train over the crosson the part of the defendants.

ing while the former train was passing, and it 4. SAME-PROXIMATE CAUSE.

must stop, look, and listen for the other train Where a train of one company had the right

before entering on the crossing. of way to cross the track of another company

(Ed. Note.-For cases in point, see vol. 41, by the signals given by the flagman employed Cent. Dig. Railroads, 88 928-932.) by the two companies to control the operation 12. SAME-JOINT LIABILITIES. of the trains at the crossing, the act of the

Where a passenger was injured at a raillatter company in backing its train against the road crossing by the collision of trains, he may train of the former while crossing the track recover from both companies, if their joint neg. was the proximate cause of an injury to a pas

ligence caused the collision. senger of the former, received in consequence

[Ed. Note.-For cases in point, see vol. 41, of the collision between the two trains. 6. SAME-RECOVERY BY PASSENGER.

Cent. Dig. Railroads, $8 854, 928.) A passenger on the train of one company

13. SAME-EVIDENCE-SUFFICIENCY. may recover from another company for an in

Evidence in an action for injuries received jury resulting from a collision at a crossing,

in a collision at a railroad crossing examined, caused by the negligent backing of a train of the

and held to support the finding that plaintiff latter into a car of the former occupied by the

was injured as claimed by him. passenger, though the company undertaking to carry the passenger was negligent.

Appeal from Circuit Court, Clark County ; [Ed. Note.-For cases in point, see vol. 41,

Jacob Herter, Special Judge. Cent. Dig. Railroads, $ 928.)

Action by Edward A. Kleespies against 6. APPEAL-RULINGS—REVIEW.

the Baltimore & Ohio Southwestern Railroad The court on appeal will only review rul Company and another. From a judgment ings in giving and refusing instructions to

for plaintiff against the Baltimore & Ohio which objections have been made and supported by argument.

Southwestern Railroad Company, it appeals. 7. SAME-EXCEPTIONS-SUFFICIENCY.

Affirmed. Exceptions to instructions must be taken

C. L. & H. E. Jewett, for appellant. J. W. severally, and where instructions are excepted to as a whole the exception will not be avail

Fortune and M. Z. Stannard, for appellee. able, unless all the instructions are erroneous. 8. TRIAL - INSTRUCTIONS - GIVING UNDUE WILEY, J. Suit against the appellant and PROMINENCE TO FACTS.

the Pittsburgh, Cincinnati, Chicago & St. Louis Where, in an action against a railway company for backing its train into a passenger Railway Company to recover damages for pertrain of another company, the evidence showed sonal injuries sustained by appellee through that defendant was backing its train in viola their alleged negligence. A trial by jury re tion of the signal given by the flagman em

sulted in a verdict in favor of appellee as ploved by the two companies to control the operation of trains at the crossing, and that against appellant, and in favor of its code such backing was the proximate cause of the fendant. Appellant's motion for a new trial injury complained of, an instruction authoriz

was overruled, and judgment pronounced uping a recovery on finding that defendant negli

on the verdict. The Pittsburgh Company ig gently backed its cars into the train of the other company and injured a passenger there. I not made à party, but was served with no

* Rehearing denied, 78 N. E. 252. Transfer to Supreme Court deniedo

tice of the appeal and has filed a brief. Ap , and in violation of a red-light signal from pellant's demurter to the first and second the watchman, which so given warned paragraphs of the amended complaint was appellant of the approach of a train on the overruled, and such ruling, together with that track of the Pittsburgh Company; that the of overruling the motion for a new trial, last-named train was about to pass over said are relied upon for reversal.

crossing, and had the right of way, and that Omitting the formal parts of the first para. appellant's train was to remain north of the graph of the amended complaint, it is aver crossing until signaled by the flagman, by red that appellant owned and operated a his displaying a white light for it to cross ; line of railroad over and upon Broadway that by the careless, negligent, and unlawful street in the city of Jeffersonville, and that acts of said companies, said two trains colsaid street runs north and south; that the lided with each other at the crossing; that Pittsburgh Company owned and operated a the passenger coach in which appellee was line of railroad over and along Sixth street seated was struck with great force, throwin said city, and that the two railroads crossing him from his seat between two other each other at the intersection of said two seats, by which his hip was dislocated, bis streets; that at said crossing the two railroad back and side were bruised, and he was companies employed a flagman, or watchman, otherwise injured, etc. to signal their trains to stop and start on' The second paragraph of the amended said streets as they approached the crossing complaint is very similar to the first, except before passing over the same, and for that i that the charge of negligence is differently purpose said flagman employed lights, tar expressed, as shown by the following: gets, and a semaphore, owned and furnished "That at said crossing, on said date, said deby said companies; that it was the duty of fendants, through and by their engineers, both of said companies, their engineers, agents, and employés, unlawfully, carelessly, agents, etc., in charge of their trains, to obey and negligently attempted to run their locosaid signals and conform to the same as dis motives with cars attached at, upon and over played and given by the watchman, in run- said crossing, and in so attempting to pass ning their trains at said crossing; that on over said crossing said trains with locoJanuary 18, 1904, appellee was a passenger motives and cars attached ran into and upon upon one of the trains of the Pittsburgh each other with great force and violence, inCompany, and by reason thereof was entitled juring the plaintiff as hereinafter mentioned. to ride thereon from the city of New Albany That said unlawful, careless, and negligent to the city of Jeffersonville; that he was on acts of said defendants, and each of them, said train when it approached said crossing; aforesaid, at said crossing, consisted in a that the train was, by the watchman, signal. failure on the part of said defendants, ed to stop west of the crossing, by displaying through and by their engineers, agents and a red target light-it being 10 o'clock at night employés, in charge of said trains, to stop --until one of appellant's trains had passed and start their locomotives with cars at. over said crossing; that the engineer, agents, tached in obedience to the signal or signals of etc., in charge of the train on which appel their flagman, or watchman, at said crosslee was a passenger, obeyed said signal, and ing, before and as they approached the same; stopped said train, until signaled by the flag. a failure on their part and on the part of man to pass over the crossing; that the train each of them to first ascertain before passing upon which he was riding carelessly attempt over said crossing that there was no other ed to pass over said crossing while appellant train or locomotive in sight approaching and was attempting to back over the crossing about to pass over said track and crossing from north to south, without first ascertain or occupying the same; and a failure on ing that there was no other train or loco their part and on the part of each of them motive in sight approaching and about to to look and listen for the approach of a pass over, which backing train the engineer, train of cars with locomotive attached at etc., of said Pittsburgh train could have said crossing occupying the same or about seen, if they had looked, in time to have to pass over the same.” avoided a collision; that after appellant's The learned counsel for appellant suggest train had passed over the crossing from north in a very able brief that the lower court to south, the engineer, employés, etc., in overruled the demurrer because the comcharge of the same, carelessly and negli plaint charged the negligent backing of ap gently attempted to back said train over the pellant's train while the train of the Pittscrossing from south to north, without first burgh Company was passing over the crossascertaining that there was no other train or ing. It is urged, however, that the complaint locomotive in sight approaching and about to is bad, and the demurrer should have been pass over the crossing, which passing train sustained, because it appears by the specific of the Pittsburgh Company appellant's agents statement of facts that there was no comand employés in charge of its train, could mon purpose or unity of design on the part of have seen if they looked, and without first the two railroad companies; that appellee's receiving the proper signal, which would have injury was not the natural consequence of been the displaying of a white light by the appellant's negligence; and, finally, that the fiagman, to back their train over the crossing, I negligence of the Pittsburgh Company was

the proximate cause of the injuryCounsel to appellant's servants that they might again further argue that the trial court should move their train over the crossing. It is bave tested the complaint by the specific specifically charged that with the signal averments thereof, without reference to the against them appellant's servants backed general allegation of negligence against the the train toward the crossing, by reason of appellant. The proposition of law; as stated which it collided with the passing train of by counsel, is correct, as declared by the au- the Pennsylvania Company. thorities. Scheiber v. United Telephone Co., It is contended by counsel for appellant 153 Ind. 609, 55 N. E. 742. The specific acts that the complaint charges that the Pennsylrelating to the acts of appellant which are vania Company carelessly and negligently charged to be negligent are that it backed attempted to pass over the crossing while its train against a passenger train or the appellant's train was attempting to back Pittsburgh Company while the latter com over it, without first ascertaining that there pany, by the signal exhibited by the flagman, was no other train in sight approaching and had the right of way, and by reason thereof about to pass over, which backing train of was entitled to pass over the crossing; also, appellant the Pennsylvania Company's servthe further fact that, when the signal for the ants in charge of its train could have seen Pittsburgh Company's train to pass was ex if they had looked, and thus have avoided hibited, appellant's servants in charge of the accident; also that it affirmatively apthe backing train could have seen the signal pears that the proximate cause of appellee's If they had looked, and which signal convey. injury was the negligent acts of the Penned to them the important information that sylvania Company as just recited. Counsel the Pittsburgh Company had the right of argue that such negligent acts of the Pennway, and was a warning to appellant's sylvania Company were an independent inservants that they had no right, in the face tervening cause, which extended the conseof such signal, to back the train over the quences of appellant's negligence far becrossing. These are the material facts up yond any result which might have been reaon which the complaint seeks to fasten neg. sonably anticipated or foreseen, and hence ligence upon appellant, and in our judgment, for such consequences appellant is not liable. in this regard, make the complaint invulner From our viewpoint appellant cannot shield able to the attacks of the demurrer.

itsell behind the negligence of the PennsylAnother objection urged to the complaint vania Company, if it was guilty of any acts is that as between the two railroad com of negligence which led to the injury, but paniel, there was no concert or unity of it must meet and defend against its own action and common design, and “that par negligence. It is apparent that the acclties whose independent acts unite to produce dent would not have occurred if the Peancertain consequences are not jointly liable.” | sylvania Company's train had not attemptIn support of the latter proposition we are ed to pass the crossing when the signal was cited to the case of West Muncie Strawboard given to it that the way was clear. The Co. et al. v. Slack et al., 164 Ind. 21, 72 N. E. signal was as binding upon appellant as it 879, where it is said: “It is probably true that was upon its codefendant. Assuming, there an action at law for the recovery of money fore, and it is a reasonable assumption in damages; as distinguished from a suit in the face of the facts pleaded, that the equity, cannot be maintained jointly against | Pennsylvania had the right of way and was various tort feasors among whom there is entitled to the crossing, it necessarily folao concert or unity of action and no com- lows that the negligent backing of appel. mon design, but whose independent acts | lant's train was the proximate cause of the unite in their consequences to produce the injury. In Cincinnati, etc., Ry. Co. v. Worthdamage in question. . . . Each sepa- ington 30 Ind App. 663, 65 N. E. 557, 66 N. rate wrongdoer is chargeable with his own E. 478, 96 Am. St. Rep. 355, it was said: acts alone, in the absence of a joint purpose "Negligence may be the proximate cause of among the participants." While the abstract an injury of which it is not the sole or improposition of law as declared in the case mediate cause. It is enough for it to be the Just cited is abundantly supported by the efficient cause which set in motion the chain authorities as applied to the facts in this of circumstances leading up thereto." Here. case, it is not applicable. By the averments as it seems to us from the facts pleaded, the of each paragraph of the amended com- efficient cause of the injury was the backplaint, it is shown that these two railroading of appellant's train. companies maintained a joint system of sig. '1 If it be conceded that the facts pleaded nals to control the operation and running show negligence on the part of both com. of trains over this crossing. The flagman panies, still the complaint would be good as was their joint servant. Appellant's serv against appellant; for it is the law that a ants had passed over the crossing to a passenger on the train of one railroad compoint north of it, and when it had reached pany may sue and recover from another that point the flagman adjusted the signal, railroad company for an injury resulting which deprived them of the right to make from a collision at a crossing, caused by the further use of the crossing until another negligent backing of a train of the latter in. signal should be given, which would signify | to a car of the former occupied by the injured party, even though the company that , the fourth or seventh instructions is erhad undertaken to carry him was guilty of | roneous, the error is not available to appelnegligence. Pittsburgh, etc., Ry. Co. v. Spen- | lant, unless the entire series of the instruccer et al., 98 Ind. 186. If it appears from tions are erroneous. Without adverting to the facts pleaded that the proximate cause any of the others of these instructions, or of the accident was the backing of appel setting them out, either in abstract or in delant's train against the train of the Pennsyl. tail, we are clear that some of them, at vania Company, while it was passing over least, correctly state the law, and, this being the crossing under a signal that it had the true, we cannot consider those that apright of way, then the complaint is sufficient | pellant claims are erroneous. as against it. Proximate cause has been de The appellee tendered, and the court gare, fined as “such a cause as operates to pro the following instruction, to wit: “(4) If duce particular consequences, without the you find from the evidence that the Balti. intervention of any independent unforeseen more & Ohio Southwestern Railroad Comcause, without which the injuries would not pany carelessly and negligently backed its have occurred." Am & Eng. Enc. Law, cars into the passenger coach of the Pittsvol. 21 (2d Ed.) p. 485. "By 'proximate burgh, Cincinnati, Chicago & St. Louis Railcause' is intended an act which directly pro way Company as the same was crossing the duced, or concurred in producing, the in intersection of the tracks at Sixth and Broadjury." Claypool v. Wigmore, 34 Ind. App. way streets in the city of Jeffersonville, 35, 71 N. E. 509. It is plainly evident, un and you further find that the plaintiff was der the averments of the complaint, that without fault at the time of the injury comthe act of appellant in backing its train di plained of, your finding should be against the rectly produced the injury, and without it defendant the Baltimore & Ohio Southwestthe injury would not have occurred. This ern Railroad Company and in favor of the brings it within the rule defining proximate plaintiff.” The objection urged to this instruccause. In the case of Cleveland, etc., Ry. tion is that it directed the jury to find a verCo. v. Gray, 148 Ind. 266, 46 N. E. 675, the dict for the appellee, if they believed from complaint was, in its essential characteris. the evidence that appellant was guilty of tics, very much like the one before us, and it negligence in the single act of its backing its was held good. We do not refer to it at cars into the Pennsylvania train. It is urged length, but suggest that it is in point and that this instruction, in this regard, was erinstructive here. From these considerations roneous, because it gave undue prominence we have reached the conclusion that there to a single feature in the case, to the exclowas no error in overruling the demurrer. sion of others. Taking this instruction in

Appellant's motion for a new trial is pred connection with other instructions, where all icated upon alleged errors in giving and the features or facts were fairly stated to the refusing to give certain instructions and in jury, we are unwilling to say that there was overruling its motion for a new trial. Of any error in giving it. From all the facts the many instructions complained of, coun disclosed by the record we are very strongly sel for appellant have singled out and dis impressed that the sole cause of appellee's cussed but few of them, and under the rule injury was the backing of appellant's train it is only necessary for us to consider those against the train of the Pennsylvania Com. to which objections have been made and pany as it was passing over the crossing. such objections supported by argument. This becomes more plainly manifest in vier The instructions are brought into the record of the facts which relate immediately to the by bill of exceptions. The Pittsburgh Com collision, and these facts are undisputed. It pany, one of the defendants below, timely fairly appears that appellant's train passed tendered to the trial court a series of eight over the crossing, and when it stopped the instructions, all of which were given. The rear end of its rear car was about 10 feet from bill of exceptions shows that "to the action the crossing. The flagman then displayed of the court in giving these instructions" the white light as an indication to the Pennthe defendant the Baltimore & Ohio South sylvania Company that its train had the western Railroad Company, at the time ex right of way, and displayed the red light to cepted. It appears, therefore, that the ex appellant company, which indicated that it ception taken to this series of eight instruc had no right to the crossing. When the tions were in gross, and not taken severally. white light was displayed the Pennsylvania It is the settled rule in this state that ex Company's train started to pass the crossing. ceptions to instructions cannot be taken in Its locomotive, tender, and one passenger gross, but must be taken severally, and coach passed safely over; the latter being where the instructions are excepted to as a slightly scratched at the rear end by the rear whole the exception will not be available car of appellant's train. The second coach unless all the instructions were erroneous. on the Pennsylvania train had passed about Musgrave v. State, 133 Ind. 297, 32 N. E. one-fifth of its length before the impact of 885; Kelly v. John, 13 Ind. App. 579, 41 N. the two trains which produced the injury. E. 1069. Of these eight instructions appel It seems to us that these facts conclusively lant only complains of the fourth and sey show that appellant was backing its train in enth. Under the rule just stated, if either the face of the red light against it, and that such backing was the proximate cause of į subject to criticism, it is because it is not as the injury. There was no error in giving drastic as it might be. In it the court told the instruction.

the jury that a railroad company "must ex. The court upon its own motion gave a ercise ordinary care when approaching the series of instructions to the fifth, sixth, and crossing of another railroad," etc. We think eighth of which appellant complains. The the court would have been justified in saying fifth is as follows: "In an action for personal to the jury that it was the duty of such rail. injury contributory negligence is such negli. road company to exercise the highest degree gence on the part of the plaintiff as helped of care under such circumstances. The facts to produce the injuries complained of, and it here show that this railroad crossing was proven by a preponderance of the evidence dangerous and unsafe. The evidence does the plaintiff forfeits the right of recovery. not show that an interlocking switch was The plaintiff is required to prove by a pre maintained, whereby accidents of this charac. ponderance of the evidence that the negli. | ter might have been averted. Where human gence of the defendants, or of either of life is at stake, we see no reason why those them, was the proximate cause of his injuries, who put it in jeopardy, whether it be a rail. but the plaintiff is not required to prove his road corporation or not, should not be char. freedom from contributory negligence. Such ged with the exercise of the bighest degree defense may be proved by the defendants of care, so as to avert danger and save life, under the general denial, and must be es In this case, where the signals given to both tablished by a like preponderance of the evi- | companies by their servant gave to the Penndence." Counsel have not pointed out any | sylvania Company the right to pass over the tenable objection to this instruction. They crossing, it was the duty of appellant, in the criticise it because the court stated to the face of such signal, to refrain from underjury that, if proven by a preponderance of taking to back its train over the crossing the evidence that appellee was guilty of con while the Pennsylvania train was passing, tributory negligence, he "forfeits the right of and the degree of care it was required to exrecovery." As to that part of the instruc ercise was not too strongly stated in the tion counsel say: "Up to what point the instruction, plaintiff bad a right of recovery, and just The eighth instruction informed the jury where his contributory negligence would 'for that, if a passenger was injured at a rail. feit' this right, might be made an interesting road crossing by the negligent collision of subject of discussion." The instruction un trains, he could recover damages from the der consideration correctly states the law up company whose train negligently ran into on the question of contributory negligence. the train upon which he was being carried, It is also urged that the instruction is ob although the company carrying the passen. jectionable because it told the jury that the ger was guilty of negligence, and also that, appellee was required to prove by the pre it the joint negligence of both companies causponderance of the evidence that the negli ed the collision, both of them would be liable, gence of both defendants, or either of them, This is a correct statement of the law. Pittswas the proximate cause of his injuries. It burgh, etc., Ry. Co. v. Spencer, 98 Ind. 186. is suggested in argument that the instruction Appellant complained also because the trial eliminated the question of proximate cause court refused to give certain instructions entirely from the case and made the appel tendered by it. Counsel have not discussed lant responsible, if the evidence showed that them, but merely say: "To discuss these inthe Pennsylvania Company's negligence was structions refused in detail would be mere the proximate cause. We do not so construe ly to state the converse of the argument al. the instruction.

ready made against those given, and could The sixth instruction referred to is as fol. serve no good purpose." Counsel having delows: "A railroad corporation must exercise clined to support these instructions by argu. ordinary care when approaching a crossing ment, we are not called upon to consider of another railroad, and, when means are not them. Upon the merits of the case, under provided by which a collision at a railroad the facts disclosed by the record, counsel for crossing is rendered impossible, the rule to appellant say: "So far as the appellant is stop, look, and listen is not less imperative concerned, this action has at all times been on a train approaching such crossing than up a bold fraud, thus far successful. All the on a traveler about to approach a railroad circumstances, and a great preponderance of crossing, who must stop, look, and listen for the testimony worthy of belief, indicates that approaching trains before entering upon such the injury complained of was simulated at crossing." The objection urged to this in. the time of the occurrence and that its con. struction is that it told the jury, in substance, tinuance is feigned.” Counsel also say that, that a railroad company, in backing its train if there ever was any injury, the party liable over the crossing of another railroad com was the Pennsylvania Company, "whose pag. pany, was required to observe the same care senger he was, yet during the trial the ape that a traveler about to approach a railroad pellee never intended to hold that company crossing must before crossing over the road. responsible." In view of the earnest appeal As applied to the facts in this case, we do of counsel for a reversal of the judgment, not think the instruction is wrong. If it is ! both in their brief and in oral argument,

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