19 Ind. App. 584 | Ind. Ct. App. | 1898
— Appellant was plaintiff below, and prosecuted this action against appellee for injuries received by her by one of appellee’s trains colliding with a buggy in which she was riding. She was in a buggy belonging \to and being driven by one Dr. Edwins, and was on her way with him to procure some medicine for a member of her father’s family.
Appellant and Dr. Edwins were driving north on said street. A regular passenger train from the west, on appellee’s road was scheduled to arrive at Elwood af nine fifteen o’clock a. m., on the day of the accident, but was five minutes late.. Immediately east of said street and adjoining appellee’s right of way on the north, in the angle caused by the crossing of the street, appellee maintained its passenger station and depot. In the southwest angle caused by the intersection of the railroad and said street, there was a one story building standing about twenty feet south of the track and about twelve or fifteen feet west of the street, used as a photograph gallery. South from said point said street was built up with buildings and structures, and trees were growing along the sidewalk and upon private grounds so as to obstruct the view and hearing of trains approaching from the west.
The negligence complained of was the alleged careless colliding of appellee’s train with the buggy in which she was riding. The complaint is in two paragraphs, but as no question is presented as to the sufficiency of the complaint, it is not necessary to refer to it at any length. It is enough to say that it is
The appellee answered by general denial, trial by jury, and a special verdict returned. Each of the parties moved for judgment on the verdict. Appellant’s motion was overruled and appellee’s sustained. The record shows that appellant tendered certain interrogatories to the court, which she requested the court to submit to the jury as a part of the special verdict, which it refused to do, and embodied the same in a bill of exceptions. The rulings of the court on the respective motions for judgment, and its refusal to submit the interrogatories tendered, are assigned as errors.
On the question of appellant’s freedom from negligence the pivitol facts as found by the jury, reduced to narrative form, are as follows: That the plaintiff’s mother sent her with Dr. Edwins to get some medicine for her sick brother; that she was riding with him in a top buggy with the top up and the curtains on; the horse and buggy were the property of Dr. Edwins; that the horse was a spirited animal, afraid of cars, and that Dr. Edwins was a prudent, safe, and skilful driver; that the appellant and Dr. Edwins were both possessed with good hearing and eyesight; that they drove onto Anderson street from D street, which runs east and west; that Anderson street runs north and south; that when they turned into Anderson street, at a point about 270 feet south of the railway track, they stopped the. horse'and looked and listened for a train; that after they so stopped, they drove on toward the railway in a trot, without stopping, looking or
As a question of law upon these facts, the appellant Avas, in our judgment, clearly guilty of such negligence, contributing to her injury, as to preclude her recovery, and upon this question the law in this jurisdiction is well settled.
The verdict shows that there were some obstructions, buildings, and trees, on the west side of Anderson street, which obstructed the view, and prevented appellant from seeing the train as it approached till she reached a point within twenty-five feet of the track, where, by looking to the west, she could see along the track a distance of 700 or 800 feet. It further shows that she was riding in a covered buggy, with the top up and curtains on, so that the only opening through which she could see was immediately in front.
The fact of these obstructions, and the covered buggy imposed upon her the duty of increased care in the use of her senses of sight and hearing. Beach Contrib. Neg. (2nd ed.), section 183; Lake Shore, etc., R. W. Co. v. Boyts, supra.
A person when in a place, or while approaching a place of danger, must use care and caution commensurate to such danger; and where one aproaches a point where a highway crosses a railroad track on the same level, it is his duty to proceed with caution, and, if he attempts to cross the track, either on foot or in
As was said by Monks, J., in Smith v. Wabash R. R. Co., supra: “The question of care at railway crossings as affecting the traveler, is no longer, as a rule, a question for the jury. The quantum of care in a large class of cases is exactly prescribed as a matter of law.
“In attempting to cross, the traveler must listen for signals, notice signs put up as warnings,and look attentively both ways for approaching trains, if the surroundings are such as to admit of that precaution. If a traveler by looking could have seen an approaching train in time to avoid injury, it will be presumed in case he is injured by collision, either that he did not look, or, if he did look, that he did not heed what he saw, such conduct is negligence per se.” See, also, Cincinnati, etc., R. W. Co. v. Duncan, supra; Ohio, etc., R. W. Co. v. Hill, 117 Ind. 56; Beach Contrib. Neg. (2nd ed.), sections 180, 181, and cases cited; Lake Shore, etc., R. W. Co. v. Boyts, supra; Towers v. Lake Erie, etc., R. R. Co., 18 Ind. App. 684. This principle and these cases (and many more might be cited) are, it seems to us, decisive here.
The verdict in this case affirmatively shows that appellant stopped and listened for a train when she first turned into Anderson street, and again when she was within about sixty-five feet of the crossing. At each of these places it was impossible to see a train approaching from the west on account of obstructions. After the last stop, Dr. Edwins, the person with whom she was riding, proceeded to drive across the track, in a “jog-trot,” and she neither looked to the right nor to the left. It is further shown that at a point within twenty-five feet of the crossing, she had an unob
The verdict also shows that from ten to twenty-five persons were standing on the platform at appellee’s station, in plain and full view of appellant, and many of them gesticulating, motioning, etc., to warn her of danger; but she seemed to be oblivious to all this.
The fact that it was about the time for a train to arrive at that station, and many persons standing on the platform, ánd she being familiar with the surroundings and anticipating danger, was enough to warn her. The language of Monks, J., in Smith v. Wabash R. R. Co., supra, applies to the facts here with significant force. Such facts bring the case squarely within the rule announced there. The appellant, by looking, could have seen the train in time to avoid the injury, and as she was injured we must presume, eiiher that she did not look, or if she did look, she did not heed what she saw. Such conduct was negligence per se.
The case before us, is, upon the facts, much stronger than that of the Lake Shore, etc., R. W. Co. v. Boyts, supra. In that case if appellee had looked southward when within thirty feet of the nearest rail, he would have had an unobstructed view of the side-track, upon
In Mann v. Belt R. R., etc., Co., 128 Ind. 138, the court said: “When it is said that a person approaching a railroad crossing must look and listen attentively for approaching trains, it is not to be understood that he may look from a given point, and then close his eyes; but it must be understood that he must exercise such care as a reasonably prudent person, in the presence of such danger, would exercise to avoid injury,” In other words, a person approaching a railroad crossing, in order to avoid injury, must exercise continuing care and caution until the danger is past.
In Caldwallader v. Louisville, etc., R. R. Co., 128 Ind. 518, appellee kept a watchman at a crossing to warn travelers. Appellant approached the crossing, but the watchman gave her no notice that a train was approaching. She did not look for approaching trains, but looked at the watchman. She had good hearing and eyesight, and when within twenty feet of the crossing she had an unobstructed view of the track for 100 feet north, and when within ten feet of the track she had such view for 300 feet, and could have seen the approaching train before she stepped on the track if she had looked. Notwithstanding these facts, she heedlessly stepped upon the track in front of a moving train and was injured. It was held she could not re
It seems to us that the question that we are now considering is so firmly fixed in our jurisprudence as to be free from doubt or conjecture, and a further discussion and citation of authorities are wholly useless.
It is contended by appellant, and conceded by appellee, that the negligence of Dr. Edwins, with whom she was riding, cannot be imputed to her. We need not discuss this proposition, because it affirmatively appears from the verdict that appellant herself was guilty of such negligence as to preclude her recovery. Because she was riding with another did not relieve her of the duty to look and listen for herself, and to use all reasonable means, within her command to avoid injury. Even though she was riding with another, and had no authority to control or direct the movements or acts of the driver, still she was bound to show her freedom from negligence contributing to her injury. Upon this question the jury has resolved every essential fact against her, and we cannot review that finding. The facts found present a case where the court can say, as a matter of law, that appellant was guilty of contributory negligence, which will preclude her recovery. We content ourselves, upon this question, in citing the following cases, and cases therein cited: Cadwallader v. Louisville, etc., R. R. Co., supra; Lake Shore, etc., R. W. Co. v. Boyts, supra.
This leaves but one question for consideration, viz: The refusal of the court to submit to the jury certain interrogatories, tendered by appellant. There were thirteen of these interrogatories, and we have examined them with much care. Our conclusion is that the court did not err in refusing to submit them to
“(13) Was not Stanley W. Edwins on the 3rd day of September, 1895, a physician and surgeon of more than thirty years standing?” It certainly would not have been error for the court to have submitted this interrogatory to the jury, and neither was it error to reject it.
’ There were but two questions at issue before the court and jury: (1) Was appellee guilty of actionable negligence, and (2) was appellant free from negligence? This interrogatory was not relative to either issue, and being wholly immaterial, there was no error in rejecting it. But aside from this, the question here presented by appellant is not available error, even if the interrogatories were improperly rejected. If it was error to reject them, it was an error occurring upon the trial of the case, and no motion for a, new trial was made, and an error occurring upon the trial, not properly raised and embraced in a motion for a new trial, does not present any question for review by an assignment of error on appeal.
In the case last cited the identical question now under consideration was decided by this court. Henley, J., speaking for the court said: “The propounding or refusal to propound any interrogatory, and the changing or modification of any interrogatory, by the-court, may be objected to by counsel, and the exception to the ruling saved by bill of exceptions and is properly presented by the motion for a new trial.”
In the case at bar, under the facts found, there is no possible hypothesis upon which appellant could recover, and there being no error in the record, the judgment is affirmed.