CHICAGO, ST. L. & P. R. CO. v. BUTLER. (Appellate Court of Indiana. June 19, 1894.) RAILROAD COMPANIES - ACCIDENTS AT CROSSINGS

-PLEADING-INSTRUCTIONS.

1. In an action against a railroad company, a complaint alleging that defendant negligently and without giving any signal ran a train over a highway crossing at the rate of 50 miles an hour, just as plaintiff was about to drive across, and negligently and maliciously caused steam to escape from the engine at the time, by reason of which negligent acts plaintiff's horse became frightened and ran away, injuring plaintiff, is good, since it counts upon the defendant's negligence in failing to give the statutory signals. and not upon common-law negligence in allowing the steam to escape. Ross, J., dissenting.

2. When a person riding in a covered wagon along a road which crosses a railroad track at an angle looks and listens, and, while he is looking ahead, and is very near the crossing, a train, out of time, comes up to the crossing from behind the wagon at the rate of 50 miles an hour, without any signal, he is not blamable for driv ing across the track in front of the train, instead of stopping or turning out in some other direction, even though he ought, by the exercise of ordinary care, to have seen the train when he was within 90 feet of the crossing. Railway Co. V. Burton (Ind. Sup.) 37 N. E. 150, followed. Ross, J., dissenting.

3. An instruction that, even if the engineer gave the necessary signals on approaching the crossing, yet, if he unnecessarily opened the valves so as to allow the steam to escape, and thus frighten plaintiff's horse, defendant would be liable, is harmless error where the special findings conclusively show that the only act of negligence on which the verdict is based is the failure to give the proper signals. Ross, J., dissenting.

4. Where the evidence shows that plaintiff was a practicing lawyer, that his injury confined him to the house for four days, and rendered his shoulder so stiff that he could write for only a few minutes at a time, and that this disability interferes with the practice of his profession, it is proper to instruct the jury in determining the damages to consider the nature and extent of plaintiff's injuries, loss of time occasioned thereby, and any inability to labor or engage in his usual vocation.

5. Where the complaint alleges that plaintiff has expended $100 in attempting to cure himself, and the evidence merely shows that he sent for one physician, who examined him twice, and gave him some treatment, and that he called on another physician. who also examined his injuries, without showing what such services cost, or what they were worth, it is error to instruct the jury to consider, in estimating damages. plaintiff's "expenses of curing or attempting to cure himself."

6. Such error may be cured by remitting $100 from the damages recovered. 7.38N. E.no.1-1

Appeal from circuit court, Henry county; E. H. Bundy, Judge.

Action by Charles M. Butler against the Chicago, St. Louis & Pittsburgh Railroad Company. Plaintiff obtained judgment. Defendant appeals. Modified.

J. H. Mellett and Burchenal & Rupe, for appellant. L. P. Newby and M. E. Forkner, for appellee.

DAVIS, J. The appellee recovered judgment against appellant in the court below for $3,000 on account of personal injuries. With their general verdict the jury returned answers to a large number of interrogatories.. The errors complained of are predicated upon the action of the trial court in overruling the demurrer to the complaint, the motion for judgment upon the answers by the jury to the interrogatories, the motion for a new trial, and rendering judgment in favor of appellee upon the general verdict.

The ruling of the court on the demurrer to the complaint is the first question discussed. The complaint, omitting the formal allegations, charges, in substance, that the appellant's railroad crosses the National road, in the village of Raysville, Henry county, at an angle of about 30 degrees, at or near the center of Raysville. That the National road at this point is about 80 feet wide, and Raysville contained a population of about 300. That the highway runs east and west through the town, and the railroad runs northeasterly and southwesterly. That on the north side of the highway, and east of the crossing, there were a large number of dwelling houses and buildings obstructing the view of the railroad track to the east. That the railroad, east of the crossing, curves to the east, and the view is obstructed by hills, etc. That two other highways cross the railroad, one on either side of the National road crossing, and 400 feet therefrom. That on the 22d of December, 1888, appellee, with one John E. Keys, was returning from church, east of Raysville, and upon invitation of Elijah Applegate they rode with him from the church, intending to go to Knightstown, where the parties all resided. That they were riding in an ordinary covered spring

wagon, with one seat, and drawn by one horse. The plaintiff was seated with the driver, on the same seat, and was facing in the direction in which they were traveling; Keys being seated between plaintiff and Applegate, facing the rear of wagon. That in this situation they approached the railroad crossing. That when about 100 feet from the crossing, Applegate checked his horse to a slow walk, and he and plaintiff looked and listened, with due care and diligence, for approaching trains, but neither saw nor heard any train approaching, and no trains were then due. That thereupon Applegate drove the horse upon and over the crossing, and just as the wagon passed over the track the appellant's servants negligently and without giving any signal ran a through mail train, at the rate of 50 miles an hour, over said crossing, from the east; and as the engine passed the horse, running almost parallel with the course in which he was going, appellant's servants negligently and maliciously opened the side valves of the engine, thereby causing a great vapor of steam and smoke to escape with a loud, hissing, and frightening noise, which, combined with the noise of the train, created a perfect tumult of noise and confusion. "And the plaintiff expressly avers that the defendant did not, nor did any of her servants, agents, or employés in charge of said train or otherwise, sound any whistle or ring any bell within three-quarters of a mile of said crossing while approaching thereto, but, on the contrary, he avers that she, by her servants as aforesaid, did in a most careless and negligent manner run said train of cars, out of time, into and through said place, when people were constantly passing and repassing, at the unusual high rate of speed aforesaid, upon a down grade, without sounding any whistle or ringing any bell within threefourths of a mile of said crossing. That, had any signal been given, the plaintiff and said Applegate could and would have heard the same, and the injury could and would have been avoided." And by reason of the negligent and careless acts of the appellant, by its employés aforesaid, the said horse, though perfectly gentle and docile, became greatly frightened and unmanageable, and ran away. That the driver, in attempting to control the horse, broke the bridle bit, and, the horse then being beyond control, and running in the direction of a large number of locust shade trees, standing upon the side of the street, a short distance ahead of him, the appellee, to avoid collision with the trees, and the danger therefrom, which seemed to him at the time imminent and unavoidable, attempted to leap from the wagon, and, falling upon the ground, received bruises and inJuries to his shoulder and arms, for which he sues and demands judgment. That the inJury resulted wholly from defendant's negligence, and without any fault of plaintiff.

It is insisted by counsel for appellant that

the purpose of the pleader was to rely upon the common-law action of negligence in causing the escape of the steam, and thereby causing the horse to take fright and run away, and that the allegations as to the failure by appellant's servants to give the statutory signals were for the purpose of showing that the appellee was not in fault in bringing him in close proximity to the passing train, and were not stated as the basis of a cause of action under the statute. On this theory the contention is that the complaint is not sufficient. We do not concur with the views of counsel for appellant as to the theory of the complaint. In our opinion, the complaint proceeds upon the theory that the appellant negligently failed to give the statutory signal, by reason of which the appellee, in the exercise of due care, was placed in a position of danger, and that by reason of such negligence, and the noise of the train and the escape of steam as concurrent acts and circumstances, the horse became frightened, and the appellee was injured. On this theory the complaint is sufficient. Railroad Co. v. Davis (Ind. App.) 33 N. E. 451.

The second and third assignments of errorthat the court erred in overruling appellant's motion for judgment in its favor on the answers of the jury to the interrogatories, and in rendering judgment for appellee-we will consider together. The interrogatories which were submitted at the request of the appellant, and the answers of the jury thereto, are as follows: "(1) Was plaintiff injured through the negligence of any of defendant's agents or servants? If so, state specifically what act of negligence, and by whom committed. State all. Ans. Yes, by neglecting to sound proper signals by defendant's agents or servants in charge of train. (2) State whether or not the whistle was blown upon defendant's train prior to approaching said crossing, and, if so, how many times, and where at each time. Ans. Yes. The whistle was blown once at some point beyond Pritchard's crossing. (3) If plaintiff had heard the signal from defendant's train before he went on the crossing, could he have avoided the injury? Ans. Yes, if given as law directs. (4) If plaintiff had seen defendant's approaching train before going upon the crossing, could he have avoided the injury? Ans. No. (5) How far eastwardly from the crossing where the accident complained of took place would a traveler on the National road have to go before he would meet any obstruction which would prevent his seeing the train approaching from the northeast, going along defendant's track? Ans. Ninety feet. (6) How far up the track toward the northeast could he see an approaching train before he came to those obstructions? Could he not see more than half a mile? Ans. (1) About a third of a mile. (2) No. (7) From a point in the middle of the National road, 108 feet east from the center of the crossing, could not a train coming from the northeast along

defendant's road be seen at all points within 3,100 feet of the crossing, at the time of the accident complained of? Ans. No. (8) Could not such train be so seen from all places in the National road between the crossing and this point, 108 feet distant therefrom? Ans. No. (9) From a point in the middle of the National road,-from a point 80 feet east from the crossing,-could not a train coming from the northeast along defendant's road be seen at 3,100 feet of the crossing at the time of the accident? Ans. No. (10) Could not such train be seen from all points on the National road, between the crossing and this place, 80 feet distant therefrom? Ans. Yes. (12) Was the plaintiff acquainted with the character of the crossing at which the accident occurred, and the approaches thereto? Ans. Yes. (13) Did plaintiff believe said crossing to be a dangerous one? Ans. Yes. (14) At what hour of day or night did the accident occur? Ans. Two o'clock p. m. (15) At what rate of speed did plaintiff approach the crossing from a point 100 feet east of it? Ans. Part of the time in a walk and part of the time in a slow trot. (16) At what rate of speed did defendant's train approach the crossing? Ans. Fifty miles per hour. (17) What did the plaintiff do to avoid the accident and injury resulting from it? State all that he did, and where each thing was done. Ans. (1) He engaged in conversation with those in the wagon as to the possibility of a train being due when at Brando road. (2) He used his eyes and ears from this point to the crossing; then at the crossing he told Applegate to watch his horse. (18) Did plaintiff at any time, when approaching the crossing, request the driver of the wagon in which he was riding to stop? If so, when? Ans. No. (19) In approaching the crossing, was not the steam shut off from the cylinder of defendant's engine? Ans. No. (20) Could steam escape from the cylinder of defendant's engine, so as to make a loud and hissing noise, when the steam was shut off from such cylinder? Ans. No. (21) | Was defendant's track at the crossing a single or double track? Ans. A single track. (22) If plaintiff had seen defendant's approaching train while he was approaching the crossing, and was 100 feet distant therefrom, could he have avoided the accident? Ans. Yes. (23) If plaintiff had seen defendant's approaching train while he was approach the crossing, and was still 80 feet distant therefrom, could he have avoided the injury? Ans. No. (24) If plaintiff had seen defendant's approaching train while he was still fifty feet from the crossing, could he have avoided the injury? Ans. No. (25) If plaintiff had seen defendant's approaching train while still thirty feet distant therefrom, could he have avoided the injury? Ans. No. (26) Was not plaintiff at the time of the accident in full possession of his senses, and faculties unimpaired? If not, state in what respect. Ans. Yes. (27) Was not the day of the acci

dent a clear, mild winter day? If not, what kind of a day was it? Ans. It was a mild winter day. (28) While plaintiff was approaching the crossing, and before the horse attached to the vehicle in which he rode went upon the crossing, how many feet distant from the crossing was he when he last looked toward the northeast along defendant's track for an approaching train? Ans. Eight or ten feet. (29) From a point in the middle of the National road, 80 feet east from the center of the crossing, could not a train coming from the northeast along defendant's track be seen at all places within half a mile of the crossing, at the time of the accident? And could not such train be seen from all places in the National road between the crossing and this place, 80 feet distant therefrom? Ans. (1) No. (2) Yes. (30) State whether or not a train approaching from the east could be seen by a person upon said highway 255 feet east of the crossing of the said highway and said railroad; and, if so, for what distance east of said crossing upon said track said train could be seen? Ans. (1) Yes. (2) About 1,700 feet."

The position of counsel of appellant is that the answers of the jury to the interrogatories conclusively show that appellee was guilty of negligence in approaching the crossing, which contributed as a proximate cause to the injury. In this connection it is urged that many of the findings are statements of conclusions drawn by the jury. It is conceded that such answers are responsive to the questions, and, if the answers are statements of conclusions, such conclusions have been elicited at the instance of the appellant. Disregarding, however, all the statements that can be construed as conclusions, it should be remembered that answers to the interrogatories override the general verdict only when both cannot stand together; that is to say, when the antago nism is such, upon the face of the record, as is beyond the possibility of being removed by any evidence legitimately admissible under the issues in the cause. Lockwood v. Rose, 125 Ind. 588, 594, 25 N. E. 710. The contention of counsel for appellant is that the answers to the interrogatories show that the appellee, in approaching the crossing, and in passing over the entire distance of 80 feet before going upon the crossing, had clear and unobstructed view of the track in the direction from which the train was coming for a third of a mile, and therefore they insist the conclusion is irresistible that he was chargeable, as a matter of law, with contributory negligence. The general verdict, as we have seen, finds every material fact in issue necessary to a recovery in behalf of appellee in his favor. The effect of this verdict is that the negligence of appellant has been established, and also that the injury was occasioned without fault on the part of appellee. This verdict is to stand unless the answers to the interroga

tories are so in conflict with it that it cannot be sustained by any possible evidence that was legitimately admissible in the case under the issues. The appellee was riding in the wagon as the guest of Applegate. No train was then due. The train was being run out of time at a speed of 50 miles an hour, without giving any of the signals for the crossing as required by the statute. When 80 feet east of the crossing, appellee was nearer to the railroad track north of that point than he was to the crossing. During the time they were approaching the crossing from this point appellee engaged in conversation with those in the wagon as to the possibility of a train coming at that time; also used his eyes and ears, and told Applegate to watch his horse. In the exercise of due care, appellee was required to look and listen in both directions for approaching trains, but he could not look both ways at the same instant. He was not required to give his sole attention in one direction. The position of appellee and the location of the train at the time when, in the exercise of due care, appellee should have first seen the approaching train, does not appear. If the train was seen by appellee when he was within less than 80 feet from the crossing, the course to be pursued had to be determined instantly. With the train coming behind and to the right of them, the question was whether they should stop on the east side of the track or cross the track in front of the train to the west side, or attempt to get out of the way in some other direction. It appears that the parties, including appellee, did cross the track before the train reached the highway crossing. Now, in what respect can the court adjudge as a matter of law, under the rule applicable in such cases as hereinbefore enumerated, on the answers of the jury to the interrogatories, that appellee was on this occasion guilty of negligence which contributed as a proximate cause to the injuries he sustained? What, in the exercise of ordinary care, can the court say he should have done that he did not do, or that he should not have done that he did do? We do not know that he would have been in any better or safer position, or that the horse would not have been frightened and the injuries sustained, if the horse had been stopped, or an attempt had been made to avoid the danger in some other manner. The principles applicable to this case are fully and clearly stated in a recent decision of the supreme court. Railway Co. v. Burton (Ind. Sup.) 37 N. E. 150. The reasoning of Judge Hackney in that opinion is decisive of the question now under consideration. See, also, Railroad Co. v. Brunker, 128 Ind. 542, 26 N. E. 178.

It is next insisted that the evidence is insufficient to sustain the verdict. If it was conceded to be true, as contended by counsel for appellant, that appellee, in the exercise

of ordinary care, ought to have seen the approaching train when he was within 50 feet of the crossing, does the conclusion inevitably follow that he was guilty of contributory negligence in crossing the railroad track? The appellee had the right to use the highway crossing. He also had the right to presume that appellant's servants in charge of any approaching train would give the statutory signals before reaching the crossing. If, in the exercise of prudence and caution in proportion to the peculiar hazards incident to this crossing, he did not discover the train until he was in a perilous position, we are not prepared to say that, without time for reflection, he ought to have adopted some other course in his efforts to get out of danger. There is evidence, in our opinion, fairly tending to support the verdict on every material point in issue.

It is also insisted that the third instruc tion given by the court is erroneous. The substance of this instruction is that, if appellant's employés sounded the whistle and rang the bell, as required by law, yet, if the engineer unnecessarily opened the side valves of the engine when it was likely to frighten the animal, etc., the appellant would be liable. This instruction does not correctly state the law applicable to the case. It is conceded, however, by counsel for appellant that the answers to the interrogatories conclusively show that the only acts of negli gence on which the verdict is based is the failure to sound the proper signals. In this view of the case, the instruction was harmless. In other words, the jury expressly find that the facts on which the court er roneously instructed them they might find appellant liable did not exist.

Counsel for appellant also earnestly contend that the court erred in giving the jury the eleventh instruction. It is alleged in the complaint "that by reason of said injury his ability to practice his profession or follow any other pursuit in life has been great| ly impaired, his shoulder has been permanently injured, he has suffered great pain of body and mind, has expended one hundred dollars in attempting to cure himself, has lost a large amount of time, and has been otherwise damaged," etc. The eleventh instruction is as follows: "If you find for the plaintiff, you will assess to him such damages as you, in your judgment, determine will compensate him for the injury sustained. And in determining the amount of same you will consider the nature and character of the injuries received by him, if any, any pain and suffering he may have endured in consequence thereof, either in body or mind, whether his injury is permanent or otherwise, loss of time occasioned thereby, expense of caring or attempting to care for himself, any inability to labor or engage in his usual avocation, and all facts and circumstances in evidence tending to show the injury he has sustained, and upon the whole