79 Ind. App. 491 | Ind. Ct. App. | 1922
Complaint by appellant to recover damages for the death of its decedent, Charles W. Miller, caused by a collision between an automobile in which he was riding as a guest and an interurban car operated by appellee at a point where appellee’s railway line crosses a public highway.
The complaint, after alleging the appointment of appellant as administrator' of the estate of said Miller, the incorporation of appellee and the operation by appellee of an interurban railway, alleged that said railway crossed an east and west highway at the town of Antioch near Frankfort, said highway being about forty feet wide, said railway at the point of crossing running in ’a general northerly and southerly direction; that there was situated at the time of the accident which caused the death of the decedent, buildings obstructing the view of the railway tracks to the south; that from said crossing south the railway curved to the east and rear of said buildings so that the view of the railway track to the south and east was obstructed; that about 7:00 p. m. March 26, 1918, Charles W. Miller was riding in an automobile with Chester.G. McKinsey, who was the owner of and driving said automobile in a westerly direction over said highway and as they approached the railway tracks, whs driving the automobile from eight to ten miles an hour; that said automobile so driven and operated by McKinsey approached the crossing from the east in a careful manner, both McKinsey and Miller watching and looking for a car on appellee’s. tracks; that both looked to the north and south, McKinsey slowing the speed of his automobile, watched and listened for the approach of a car; that approaching said tracks for a distance of seventy-five or one hundred feet the view of the railroad by Miller and McKinsey was obstructed by buildings and they both continued to
An answer of general denial having been filed, the cause was tried by jury and resulted in a verdict in favor of appellant. The jury in ■ connection with the general verdict answered certain interrogatories.
The facts as found by the jury in answer to the interrogatories are in substance as follows: Charles W. Miller was killed March 26, 1918, between eight and nine o’clock a. m. at a public highway crossing on appellant’s tracks near Antioch when he was riding in an automobile driven by Chester McKinsey and when the decedent was traveling west on said highway. The highway at the place of the collision ran east and west
Appellee filed a motion for judgment in its favor on the interrogatories and answers thereto for the reasons: (1) that the interrogatories and answers showed appellee was not careless and negligent as charged in the complaint; and (2) that they also showed the decedent was guilty of contributory negligence. Pending this motion, appellee also filed motion for a new trial. The court sustained appellee’s motion for judgment on the interrogatories and answers and overruled its motion for a new trial.
Appellee, in order to sustain the action of the trial court in rendering judgment in its favor on the answers to the interrogatories, contends: (1) that the complaint does not contain facts sufficient to state a cause of action in that it fails to charge that the death of the decedent was caused by the alleged negligent acts of appellee; (2) the presumption that there was evidence to support all the allegations of the complaint does not extend beyond the legal import of the facts alleged in the complaint; and (3) that the decedent was guilty of contributory negligence.
Eleven of the twelve points relied upon by appellee to sustain the proposition that appellant is not entitled to reversal of the judgment relate to the alleged insufficiency of the complaint hereinbefore discussed. The only reference appellee makes to the interrogatories and their effect upon the general verdict is in point 9, which is as follows: “The legal force and effect of the interrogatories in this case has already been passed upon by this court. Waking v. Cincinnati, etc., R. Co., 125 N. E. 799.”
Kirmse v. Chicago, etc., R. Co. (1920), 73 Ind. App. 537, 127 N. E. 837; New York, etc., R. Co. v. Leopold, Admr. (1920), 73 Ind. App. 309, 127 N. E. 298; and Waking v. Cincinnati, etc., R. Co. (1920), 72 Ind. App. 401, 125 N. E. 799; cited by appellee are easily distinguished from the instant case. In the Kirmse case the questions before the court related to the giving and refusal to give instructions where the evidence was not in the record. The Waking case was an action by an administratrix for the death of her decedent, who was killed at a railroad crossing while he was driving the automobile, and where the jury, in answer to an‘interrogatory, found there was nothing to have prevented the decedent from looking and seeing the train in time to have stopped the automobile in a place of safety. In New York, etc., R. Co. v. Leopold, supra, the decedent was riding in a one-horse buggy driven by himself. He had an unobstructed view of the track in the direction from which the train came for a distance of 475 feet when he was 100 feet from the track. There was nothing to thereafter obstruct his view or prevent his looking,
The judgment is therefore reversed with directions to the trial court to overrule appellee’s motion for judgment and to sustain appellee’s motion for a new trial.