178 Ind. 177 | Ind. | 1912
Action by appellee for personal injuries sustained by him on account of the alleged negligence of the appellant in failing to keep in repair a street crossing in the city of Hammond, Indiana. The court overruled a demurrer to a second amended complaint, and issues were joined by an answer in general denial. Trial by jury, and a verdict in favor of appellee, together with answers to ninety-eight interrogatories. The court overruled a motion for judgment on the answers to the interrogatories, and rendered judgment on the verdict.
Errors assigned are: (1) Overruling demurrer to the appellee’s amended complaint; (2) overruling appellant’s motion for judgment on answers of jury to the interrogatories, notwithstanding the general verdict; (3) overruling appellant’s motion for a new trial.
Plaintiff’s complaint alleged the following material facts: That on May 15, 1905, and for more than five years prior thereto, there was in the city of Hammond a public street and highway known as Henry street; that said street crosses the tracks of a railroad company in said city; that at said crossing the defendant constructed a public crossing by planking the same for a distance of more than twenty feet in width over the tracks; that the defendant negligently and carelessly constructed, maintained and permitted said planking immediately south of the north rail of the north main track of the railroad company at said crossing to be and re
Prior to the determination of the issues, the Chicago Terminal Transfer Railroad Company became insolvent, and went into the hands of receivers. The appellee dismissed said action against said railroad company, and recovered solely against the appellant city.
We think appellee’s amended complaint was sufficient to withstand the demurrer for want of facts, and that the court did not err in overruling the same.
Did the court err in overruling appellant’s motion for judgment on the answers of the jury to the ninety-eight interrogatories, notwithstanding the general verdict ¶
The jury, answering said interrogatories, found the following material facts: That appellee received his injuries at the intersection of Henry street with the tracks of the Chicago Terminal Transfer Railroad Company in the city of
“The general verdict necessarily determines all material issues in favor of appellee, and, unless the answers of the jury to the interrogatories are in irreconcilable conflict with the general verdict, * * * If such irreconcilable conflict exists, then the court erred in overruling said motion.” Consolidated Stone Co. v. Summitt (1899), 152 Ind. 297, 300, 53 N. E. 235. See, also, Inland Steel Co. v. Smith (1907), 168 Ind. 245, 80 N. E. 538; Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 78 N. E. 1033.
Appellant’s motion for a new trial assigns as separate grounds, (1) the verdict of the jury was not sustained by sufficient evidence, (2) the verdict of the jury is contrary to law, and (3) permitting the introduction of certain evidence.
Appellant insists that the evidence does not sustain the verdict. The evidence shows that appellee was seven and a half years old; that he attended the Lincoln school in the city of Hammond, Indiana; that on the afternoon of May 15, 1905, he left said school building, and started south towards the commons with other boys; when he reached the intersection of Henry street and the tracks of the Chicago Terminal Transfer Railroad Company, he stopped to play “tag”; a train was some thirty feet away; two tracks were at this intersection, extending eastwardly and westwardly, crossing Henry street, which was one of the public streets of appellant.
Before appellee crossed the south rail of the north track, his companion called his attention to an approaching train, which the railroad company had kicked or shunted with an engine; that instead of continuing south off said track, he jumped toward the north side, and in so doing his left foot entered the space between the plank and the rail on the south side of the north rail of the north track. He was unable to extricate his foot therefrom. It became fast and before he could remove his foot, the approaching train of cars crushed it, severing it between the ankle and the knee.
The jury found by its general verdict that the appellant had knowledge of the defective condition of said crossing. Every presumption in this court is indulged in favor of the general verdict, which overrides special findings, in the absence of irreconcilable conflicts.
Under this section this court has held that a railroad company is required to make safe and convenient crossing at the intersection of all streets and highways, whether the same
Section 5250 Burns 1908, Acts 1895 p. 233, provides “that it shall be the duty of each railroad company whose road or tracks cross, or shall hereafter cross, any street, avenue or alley in any incorporated town or city in the State of Indiana; which said street, avenue or alley has been, or shall hereafter be, by addition, plat or otherwise, dedicated to the public use, to properly grade and plank or gravel its said road and tracks at its intersection with and crossing of said street, avenue or alley in accordance with the grade of said street or avenue, in such a manner as to afford security for life and property at said intersection and crossing. ’ ’
This court has repeatedly held that railroad companies are required to keep highways and street crossings in a safe condition for use. Chicago, etc., R. Co. v. State, ex rel. (1902), 158 Ind. 189, 63 N. E. 224; Chicago, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 237, 64 N. E. 860; Baltimore, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 510, 65 N. E 508; Chicago, etc., R. Co. v. Leachman (1903), 161 Ind. 512, 69 N. E. 253; Vandalia R. Co. v. State, ex rel. (1906), 166 Ind. 219, 76 N. E. 980.
1 ‘ In granting a franchise to use its streets, alleys or public places, the city exercises its delegated legislative powers, and for that purpose could not by contract barter away its future legislative control over such highways and places. It is the plain and continuing duty of a city to prevent the unnecessary obstruction of its streets, and to see that the same are kept in good order and safe: for use by the public. ’ ’ Vandalia R. Co. v. State, ex rel., supra.
The existence of concurrent causes does not relieve the appellant from liability, although one of the causes was the act of a third person. The fact that another cause operated in connection with the negligence of a municipal corporation, and brought about the injury of appellee, such negligence is the proximate cause of the injury. It was the duty of appellant city to compel the railroad company to repair said crossing. Its failure so to do was the negligence which caused the injury.
Where there is an intervening event and a defective crossing, they form concurrent causes, both being present and acting at the same time to produce the injury. The negligence of the city is responsible for one of them, yet the city cannot avoid liability because it was not responsible for the other.
This was not evidence of repairs made by the appellant subsequent to the injury, and was immaterial and the admission thereof was erroneous, but harmless.
Appellant contends that the court erred in overruling its motion for a new tidal because of certain newly-discovered evidence. An examination of the affidavits filed in support of the motion for a new trial, which set out the newly-discovered evidence, clearly discloses that such evidence is merely cumulative.
ably produce a different result at another trial. Jackson v. Swope (1893), 134 Ind. 111, 33 N. E. 909, and cases cited.
The court did not err in its ruling on said motion, because of the alleged newly-discovered evidence.
It follows from the foregoing that there appears no reversible error in the record. Judgment affirmed.
Note.—Reported in 99 N. E. 39. See, also, under (1) 28 Cyc. 1465; (2) 38 Cyc. 1926; (3) 38 Cyc. 1930; (4) 28 Cyc. 1525; (5) 28 Cyc. 1397; (6) 28 Cyc. 1388; (7) 3 Cyc. 348; (8) 28 Cyc. 1524; (9) 28 Cyc. 848; (10) 33 Cyc. 270; (11) 28 Cyc. 1354; (12) 28 Cyc. 1353; (13) 28 Cyc. 1411; (14) 28 Cyc. 1532; (15) 28 Cyc. 1479; (16) 29 Cyc. 911; (17) 29 Cyc. 901. As to what constitutes notice to a municipality of defects existing in a street, see 103 Am. St. 281. Eor notice of claim and cause of injury as condition of municipal liability for defect in highway, generally, see 20 L. R. A. (N. S.) 757. As to validity of requirement of notice of injury as condition of municipal liability, see 36 L. R. A. (N. S.) 1136.