33 Ind. App. 275 | Ind. Ct. App. | 1904
Appellee recovered damages for injuries received through the alleged negligence of appellant. Errors assigned: Overruling the demurrer to the amended complaint, the motion for judgment on answers to interrogatories, and the motion for a new trial.
The amended complaint avers that appellant’s main and side tracks, about six feet apart, run almost due east and
The theory of the pleading is that, because of the failure of those in charge of the train to give any warning of its approach, appellee was induced to approach within an unsafe proximity to the crossing, and because of this close proximity the horse became frightened at the train and became unmanageable. The object in requiring signals to be given is not altogether to prevent a collision with the train, but to enable travelers approaching the crossing to avoid the danger arising from being in close proximity to the track when the train passes. The pleading shows that the negligence of appellant in failing to give any signals or Warning of the approach of the train was the proximate cause of the injury; and that this negligence on the part of those in charge of the train led appellee into a place of danger. The proximate cause of an injury is not necessarily the immediate cause, but must be the efficient cause, and the efficient cause is that which sets in motion the chain of circumstances leading up to the injury. Causes that are merely incidental to á superior or controlling agency are not proximate causes, though they may be nearer in time to the result. Under the facts averred it was not necessary to show that the train was running at any particular rate of speed. This is not the negligence relied upon. While the failure to give signals or warnings does not excuse the traveler from exercising due care, yet the failure to give them may be considered in determining the question of the traveler’s conduct before and at the time he approached
It is further argued that the answers to interrogatories show appellant was entitled to judgment. It is not necessary that appellant’s liability should be shown by the answers to the interrogatories. The general verdict finds appellant guilty of negligence, and, unless the answers are in conflict with the general verdict, it must stand. The conduct of those in charge of the train in failing to give any warning of the approach of the train is not excused by the fact that two employes were on top of the train, one of whom was on the front car, on the lookout, who saw appellee as soon as she and her husband came within the range of his vision, and who instantly gave the signal, and the train promptly stopped. The jury expressly find that he gave no warning to appellee and her husband, and that one of the men on top of the cars saw appellee and her husband approaching the crossing. The train was about six hundred feet long, and was being pushed backwards at a rate of about two miles per hour. If, because of the location of the engine, signals could not have been heard at the crossing, it was the duty of the appellant to give Warning of the approaching train in some other way. In the absence of the statute requiring signals, it is the duty of the railroad company to give reasonable and timely warning of the approach of its trains to highways. Pittsburgh, etc., R. Co. v. Burton, supra. It is true, it is found that
An ordinance of the city of Muncie was read in evidence by appellant, and was afterwards, over appellant’s objection, struck out on appellee’s motion. Appellee insists that the ordinance struck out was not the ordinance offered in evidence. Appellant offered in evidence an ordinance passed June 19, 1879, on page 129 of the book of city ordinances, of the date of 1892. Objection was made that, when the ordinance was passed, there was in force a statute requiring the sounding of the whistle at crossings; that since that time the statute had been repealed, and the ordinance had not been readopted; and that the ordinance had been amended and was not in force. The court overruled the objection, and “admitted said ordinance” in evidence. “Said ordinance so admitted” is then set out, but bears date June 9, 1879. Appellee then, moved to strike out the “ordinance introduced in evidence;” stating, in effect, the reasons given in objecting to its introduction. This motion was sustained, “being the ordinance of the city of Muncie passed June 9, 1879,'and found on page 129 of the book of ordinances of the city of Muncie of the date of 1892.” We must conclude from the record that there was but one ordinance offered, one put in evidence, and one stricken out, and that this was the same ordinance, and that the date of
The ordinance prohibits any railroad company, locomotive engineer, fireman, or employe to sound any locomotive engine whistle within the corporate limits of the city of Muncie, affixing a penalty, provided that nothing in the ordinance “shall prohibit such company, or its employes, from sounding fire alarms, or signals necessary for the transaction of the business of such company, or such danger signals as are necessary for the protection of life and property.” The act of March 29, 1879 (Acts 1879, p. 173, §5307 Burns 1901), required the sounding of a locomotive engine whistle upon approaching a crossing, but provided “that nothing herein shall be so construed as to interfere with any ordinance that has been, or may hereafter be passed by any city in this State regulating the management or running of such engine or railroad within the limits of such city.” Under this proviso the city of Muncie was. not prohibited from adopting such an ordinance as the one in question. The act of 1879 was amended in 1881, and the amended act (§5307, supra) contains the same proviso, except it is extended to incorporated towns also. That is, whatever right the city had prior to 1879 to regulate the running of trains within the city limits was in no way abridged by these statutes, and it is not questioned that it did have power to regulate by ordinance the running of trains within the city limits. It follows that the ordinance of June 9, 1879, was an act within the city’s powers, and, unless it had been repealed, was in force at the time of the trial. The question, then, is,' what is the effect of the proviso to the ordinance. By the ordinance the company is prohibited from sounding a locomotive engine whistle within the city limits, and by the proviso it is not prohibited “from sounding * * such danger signals as are necessary for the protection of life and property.” The city had the power to prohibit by ordinance the sounding
Instruction number four reads: “The court instructs the jury that, under the law as it now is, contributory negligence on the part of the plaintiff is a matter of defense, and must be proved by a fair preponderance of the evidence in the case. But such contributory negligence may be proved by witnesses introduced by the defendant or those introduced by the plaintiff, or by both.” It is quite true that the defendant in this class of cases is entitled to have the jury informed that if, from the whole evidence, it appears that a plaintiff contributed proximately to his injury, he can not recover, and it is clear that the word “evidence” should have been used instead of the word “witnesses;” but, taking the instruction as a whole, it is not necessarily misleading. The jury were told that contributory negligence must he proved by a fair preponderance of the evidence in the case, and that it may he proved by witnesses on either side or both. The jury were also
Instruction six and one-half does not take from the jury the question of appellee’s contributory negligence, as it does not say that, if certain facts are found to be true, appellant is liable, but only says that such facts would show appellant’s negligence. If the company operating a train of cars, on approaching the crossing, failed to give signals and warnings of the approach of the cars and engine, and, because of such failure, appellee was induced to approach within an unsafe proximity to the crossing when the train was passing, and the horse became frightened at the train, and became unmanageable because thereof, and injured appellee, such conduct of appellant would be negligent.
Appellee’s husband, testifying as a witness, was asked to state to the jury — “using her language — what exclamations of pain, if any, she had given since the date of the accident.” Over appellant’s objection the witness answered: “She says, ‘my back and hip hurts me.’” One of the questions in controversy was the nature and extent of appellee’s injuries. The answer of the witness was not hearsay evidence. He Was not narrating what appellee had said of past sufferings, but gave to the jury appellee’s expression of present, existing pain. It was proper to show' the extent of appellee’s suffering, and her declarations and complaints at the time were competent. See Cleveland, etc., R. Co. v. Newell, 104 Ind. 264, 54 Am. Rep. 312; Carthage Turnpike Co. v. Andrews, 102 Ind. 138, 52 Am. Rep. 653; City of Alexandria v. Young, 20 Ind. App. 672.
Appellant also claims that the damages assessed by the jury are excessive. It would serve no good purpose to dis
Judgment affirmed.