186 Ind. 358 | Ind. | 1916
Action for damages for the death of Joseph Kolb. Trial by jury, with verdict and judgment for appellee for $7,375. The overruling of appellant’s motion for a new trial is here assigned as error.
The complaint, among other things, alleges that Clinton street, in Hammond, runs east and west; that the street is intersected at right angles with the main
The complaint further alleges that prior to the time of the accident decedent had regularly each week crossed appellant’s tracks, and that each time the gates were down when a train was approaching the crossing, and that immediately before the accident, decedent relied on the fact of the open gates as an invitation to cross the tracks; that just before the accident appellant had negligently placed lines of box cars on its west sidetrack, north and south of Clinton street, so as to obstruct the view of the tracks by an east-bound traveler; that immediately preceding the accident decedent was riding in an automobile, driven by one Einsele, eastwardly on Clinton street, approaching the crossing; that on reaching it the gates were open, and appellant’s watchman made no signal of danger but did signal decedent to proceed across the tracks; that because of the noise made by ,a switching train on the Erie'tracks it was impossible to hear an approaching train; that the driver cautiously proceeded across the tracks' and
Appellant introduced in evidence a city ordinance which prohibited the sounding of locomotive whistles in the city limits, “except in cases of emergency to prevent accidents which could not otherwise be avoided,” but we are of the opinion that the jury was warranted in finding the existence of an emergency contemplated by the ordinance. The jury was warranted by the evidence in finding Mr. Kolb guiltless of con-
Point No. 22 of appellant’s brief, assailing this instruction, reads as follows: “Where a traveler sees a train approaching it is contributory negligence to voluntarily attempt to cross the track upon the assumption that the speed of the train is not greater than a municipal ordinance allows, and such traveler assumes the risk of crossing in front of a train' he sees and knows is approaching the crossing. The giving of instruction numbered thirty-eight was, therefore, erroneous and constitutes reversible error.” As against the objection made, the instruction was not erroneous. Pittsburgh, etc., R. Co. v. Dove (1915), 184 Ind. 447, 111 N. E. 609; Stoy v. Louisville, etc., R. Co., supra; Pittsburgh, etc., R. Co. v. Terrell (1912), 177 Ind. 447, 460, 95 N. E. 1109, 42 L. R. A. (N. S.) 367; Baltimore, etc., R. Co. v. Walborn (1891), 127 Ind. 142, 26 N. E. 207.
Objections are urged against other instructions given, but a consideration of them impels the conclusion that no reversible error is presented against the giving of either of them.
Complaint is made of the refusal to give other instructions requested, but a consideration of them discloses no reversible error. The verdict was a righteous one, and the judgment is affirmed.
Note. — Reported in 114 N. E. 454. Railroads: (a) failure to give statutory signals on approaching a crossing as an excuse for a traveler’s contributory negligence, 6 Ann. Cas. 78; (b) presence of gates at crossings, effect as to traveler’s duty, 7 Ann. Cas. 801, Ann. Cas. 1914 C 704; (c) traveler’s right as to recovery for injury in crossing tracks ahead of a train known to be approaching, rule, 21 Ann. Cas. 1171; (d) duty of traveler as affected by flagman’s signal to proceed, 15 L. R. A. (N. S.) 803; (e) contributory negligence at crossing of driver of an automobile required to act in emergency, 46 L. R. A. (N. S.) 708; (f) assumption in which traveler may indulge as to speed of approaching train, 24 L. R. A. (N. S.) 493. Negligence of the driver as imputable to the occupant of an automobile, 19 Ann. Cas. 1225; Ann. Cas. 1916 E 268, L. R. A. 1915 B 953, 29 Cyc 548. See under (3) 38 Cyc 1785.