61 Ind. App. 419 | Ind. Ct. App. | 1915
On April 1, 1911, while Err Biddinger, accompanied by his wife, Minnie Biddinger, was attempting to cross appellant’s railroad upon the principal street of the city of Rochester, Indiana, the conveyance in which they were riding was struck by appellant’s west bound passenger train and the occupants of the conveyance were violently thrown therefrom and Minnie Biddinger was severely injured, from the effects of which she died the following day. Appellee, as administrator of her estate, brought an action against appellant alleging that her death was caused by the negligence of appellant. A trial by a jury resulted in a verdict in. favor of appellee in the sum of $3,000. From a judgment on the verdict, appellant has
The complaint is in two paragraphs, and the material allegations that are common to both paragraphs are, that on April 1, 1911, appellant was a corporation, organized under the Taws of the State of Indiana, and that its line of railroad, passed through the city of Rochester, Indiana, in an easterly and westerly direction, crossing the main street of the city at right angles; on the west side of the street south of the crossing were located a large number of frame buildings, and on the east side and south of the crossing were located a number of dwellings, piles of tile, forest trees, an elevator and freight ears, which obstructed the view to the railroad east of the crossing and the approach of trains from that direction. As Err Biddinger and his wife drew near the crossing, they exercised due care and caution to hear the approach of trains; that appellant carelessly and negligently ran its train of ears to the west at a speed of forty miles per hour, and against the conveyance in which Err Biddinger and his wife were riding, and that his wife by reason thereof was violently thrown from the conveyance and greatly injured, so that she died on the following day; the operators of appellant’s train failed to sound the whistle or ring the bell attached to the locomotive until within about 150 feet of the crossing, not leaving
It was said in Lake Shore, etc. R. Co. v. McIntosh (1895), 140 Ind. 261, 38 N. E. 476, “the jury were informed that if the intestate was, at the time of the accident, riding in' a conveyance driven and controlled by her husband, and if she was killed by the negligence of the appellant, being herself free from fault, her husband’s negligence, if he were guilty of any, could not be imputed to her. This, however, is the law.”
The general verdict, finding as it does that all the material allegations of the complaint have been established, which includes the violation of the statute as to the sounding of the whistle and the ringing of the bell, as well as the violation of an ordinance regulating the rate of speed of trains passing through the corporate limits of the city, is
It is claimed that the court erred in admitting in
A number of other questions are presented by
Note. — Reported in 109 N. E. 953. As to whether damages for personal injuries resulting in death were excessive or inadequate see L. R. A. 1916 C 820. As to personal contributory negligence of person riding in vehicle driven or controlled by another at railroad crossing, see L. R. A. 1915 E 225. As to duty of railroad employes on approaching crossing as affected by traveler’s view of track, see 22 L. R. A. (N. S.) 232. Generally on the question of measure of damages for death of husband or wife, see 17 L. R. A. 71. As to contributory negligence of one spouse as bar to recovery for injuries to other, see Ann. Cas. 1912 A 647. As to measure of damages recoverable by husband for death of wife by wrongful act, see Ann. Cas. 1915. A 700. As to what is excessive verdict in action for death by wrongful act, see 18 Ann. Cas. 1209, Ann. Cas. 1915 C 449. As to the law governing the distribution of damages recovered for death by wrongful act, see Ann. Cas. 1913 D 282.