55 Ind. App. 243 | Ind. Ct. App. | 1913
This was a suit for damages against appellant for the alleged negligent ’ killing of appellee’s decedent. From a judgment in favor of the appellee for $1,650, appellant appeals and assigns as error: (1) Appellee’s complaint does not state facts sufficient to constitute a cause of action; and, (2) error in overruling the motion of appellant for a new trial.
The complaint charges in substance that appellee is the duly appointed '.dministratrix of the estate of Eliza Champe, deceased; that appellant is a duly organized railway corporation, and as such operates a railroad which passes through the city of Indianapolis; that there was at the time of the alleged accident in force in the city of Indianapolis, an ordinance, making it the duty of every engineer, conductor or other person engaged in running any locomotive to ring the bell attached thereto, when the engine was moving through the city and making it unlawful to run such engine at a greater rate of speed than four miles an hour, or to run the same between the hours of sunset and sunrise unless the engine was provided with a white light on the front end and a red light on the rear of such locomotive, car, or train of cars, and providing a fine for the violation of such ordinance; that on or about July 31, 1909, while appellee’s decedent was in the proper and careful use of South New Jersey Street, in said city, where appellant’s tracks cross the same, she was carelessly and negligently struck by one of appellant’s engines, which was carelessly and negligently run and operated by it along said tracks, across said street, at a speed of more than four miles per hour, without ringing the bell on said locomotive and without a light on the front end thereof, all in violation of the ordinance of said city; that appellant carelessly and negligently ran said engine against said decedent, and thereby knocked her down and crushed and killed her; that decedent left surviving her, two children, Amy A. Champe and William Champe. “That by virtue of the laws of the State
A new trial was asked on the ground that the verdict of the jury is not sustained by sufficient evidence; that the verdict is contrary to law; that the damages assessed are excessive; and error in the giving and in refusing to give certain instructions. Certain interrogatories were submitted to the jury and in addition to the general verdict, they returned answers thereto. The substance of these answers reveals the main facts of the case as follows: That decedent was killed at about 8:30 p. m., on July 31, 1909, and was struck while walking south on the east side of New Jersey Street, at a point where the tracks of appellant cross said street; that she was struck by an east bound engine on the south track, after she had passed over three other adjacent tracks of the appellant; that there was a light on the engine that struck her but it was not burning at the time of the accident and had not been burning from the time the engine passed the viaduct west of New Jersey Street; that there was a bell on the engine but it was not ringing as it passed over New Jersey Street nor did it ring after the engine passed the viaduct, but did ring after decedent was struck; that she could not, by looking west before she entered upon the first track, have seen the engine that struck her had it been at any point within 250 feet of the place where she was struck; that just before she entered upon the track on which she was struck, she could not have seen the engine that struck her had it been at any point west and within 150 feet of the place where she was struck; that she was prevented from seeing by darkness; that she could not, as she approached the track on which she was injured, have seen the train in time to avoid being struck; that she could have heard the bell on the engine had it been ringing; that the bell did not ring continuously from the time the engine passed under the viaduct until it struck her; that her eyesight and hear
The other objections to the instructions given and refused have been carefully considered but are not of a character to require detailed consideration in this opinion. When fairly construed, the instructions given correctly informed
The other contention of appellant that the verdict is not sustained by sufficient evidence is not tenable. The questions suggested relating to the proof are technical. Considering the inferences that may be drawn from the facts proven, there is no failure to connect appellant with the injury. We find no reversible error. Judgment is affirmed.
Note.—Reported in 102 N. E. 868. As to actions and damages for wrongful death, see 12 Am. St. 375; 70 Am. St. 669. On the question of presumption as to exercise of due care by person found killed at crossing, see 16 L. R. A. 261. As to what is an excessive verdict in an action for death by a wrongful act, see 18 Ann. Cas. 1209. See, also, under (1) 31 Cyc. 770; (2) 13 Cyc. 341-343; (3) 33 Cyc. 1138; (4) 33 Cyc. 1066, 1070; (5) 38 Cyc. 1815; (6) 38 Cyc. 1681; (8) 13 Cyc. 366, 367; (9) 38 Cyc. 1782; (10) 13 Cyc. 375.