61 Ind. App. 454 | Ind. Ct. App. | 1916
The averments of the complaint which have a controlling influence on the question presented by the answers to interrogatories are in substance, as follows: On October 25, 1913, appellee’s railroad, main track and sidetrack, crossed one of the
The interrogatories and answers thereto are as follows: “1. As the plaintiff’s decedent, Phoeba Baker approached the railroad tracks of the defendant at the time and place where she was struck and killed how far could she have seen a train approaching from the west when she was fifty feet from such place, had she looked to the west? A. 100 yards * * * 2. How far could she have seen such approaching train when she was twenty-five feet from such track, had she looked in the direction from which the train was coming? A. 75 yards * * * 3. How far could she have seen such approaching train when she was ten feet from such track, had she looked in the direction from which the train was coming? A. 100 feet * * * 4. How far could she have seen the train which struck her, when she was at the south rail of the. main track had she looked to the west? A. 150 feet * * * 5. At the time plaintiff’s decedent was at the end of
In view of the evidence possible under the issues in this case, we can not say that the answers to interrogatories leave the question of decedent’s negligence open to but one inference. On the contrary, such answers leave the question of contributory négligenee open to different inferences, and hence can not override the general verdict returned by the jury. We think the ends of justice would be subserved by directing a new trial rather than by directing judgment on the verdict. The judgment below is therefore reversed with instructions to the trial court to grant a new trial and for such further proceedings as may be consistent with this opinion.
Note. — Reported in 112 N. E. 27. As to contributory negligence of person instepping on track in front of approaching train, which is running in excess of speed prescribed by ordinance, see 3 L. R. A. (N. S.) 196. As to duty of traveler approaching railway crossing as to place and direction of observation, see 37 L. R. A. (N. S.) 135.