61 Ind. App. 256 | Ind. Ct. App. | 1915
Action for damages on account of the death of Charles Cloud, alleged to have been the result of appellant’s negligence. • The facts disclosed by the record are in the main concisely stated by appellee in her brief, and are substantially as follows: During the afternoon of December 12, 1911, Charles Cloud, the decedent, was driving north in a low buggy drawn by a pony, on Oak Street in. the incorporated town of Lynn, Indiana. Oak Street was sixty feet in width and was crossed at right angles by five of appellant’s tracks. The pony stopped frequently, probably balking, but would go forward when urged by Cloud. The pony finally stopped with its feet on the south track. It is about seventy-five or eighty feet from that point to the main track. An engine somewhere down the tracks began making a noise, blowing off steam. The pony became frightened, plunged, and became unmanageable, and ran toward the crossing, and it is admitted that Cloud did all he could to restrain and hold the pony. At this time, appellant’s engine, running light, steam shut off, and moving at a speed of six to eight miles per hour, was approaching from the east, and the view from the eastward on the railroad track along Oak Street was unobstructed for some distance. At the crossing the engine collided with the buggy, Cloud still pulling back on the lines to cheek the pony. The collision occurred about eight feet west of the center of the street. The rig was struck between the front and hind wheels. No one seems to have seen the decedent after the collision until his mangled body was found about 100 feet west of the point where the rig was struck. There is some evidence tending to show that decedent was not killed or mortally wounded by the collision. . Parts of the buggy were picked up on the west end of the crossing^planks. The buggy tracks
The case was tried on two paragraphs of amended complaint to which a general denial was filed. A general verdict was returned in favor of appellee for $6,000, and with it the jury returned answers to interrogatories. These answers are in complete accord with the general verdict, so that in view of the state of the record and the errors relied upon, we refer only to a few of them particularly. The answers to interrogatories Nos. 8 to 15, inclusive, find the situation of the tracks, the approaching engine, the decedent in his buggy, and the collision just as those facts are stated in the complaint. In answer to interrogatory No. 17, which asked if decedent was killed or mortally wounded by the collision, the answer is no, and by the answer No. 19 it is found that the engineer might by ordinary diligence have stopped the engine after the collision in time to prevent Cloud’s death. In answer to No. 21, it appears that the engineer did not see decedent until after the accident and the fireman did not see him until after his pony and broken buggy appeared on the north side of the main track; in answer to No. 24^ that decedent did not know that the pony would take fright at escaping steam; in answer to No. 23 and No. 24 that three seconds intervened between the time the pony started to run and the collision, and that the engineer could have stopped the engine in that time.
The claim is made by appellant that instruction No. 7 is “ambiguous and obscure because it leaves it an uncertainty whether the court intended to instruct the jury that it was the duty of the engineer to use diligence in watching the crossing over which his engine was about to pass, and that failure to use such diligence therein would, be negligence if it resulted in injury to Cloud; or whether it was intended to charge that Cloud’s peril was to be taken into consideration in determining what ordinary diligence required of the engineer, ‘under the circumstances and facts above quoted’ ”. We do not consider these objections tenable. Appellant had introduced evidence on the issue of contributory negligence and tendered instructions which were given by the court on that issue, and for this reason doubtless, instructions Nos. 7 and 8 were given. These instructions do no more than inform the jury that it was appellant’s duty to keep a lookout for persons attempting to use the crossing, and that if Cloud was in a position of danger from which he could not remove himself before the collision, or appeared to be in a perilous position, and if appellant’s employes in charge of the engine as it approached the crossing at the time knew the conditions as they existed with reference to decedent, then it immediately became their duty to use ordinary. care to avoid a collision with him; or if they could by the exercise of reasonable care have seen and known of such position of peril and that he was so situated that he could not escape therefrom by the exercise of ordinary care, the failure on the part of such employes to exercise such care would be negligence, and it could make no difference if, some time before the collision, the fireman saw decedent
Note. — Reported in 110 N. E. 81. As to application of rule of last clear chance to person so close to track as to be injured by passing train, see Ann. Cas. 1912 B 1242. As to frightened or unmanageable team as excuse for contributory negligence at railroad crossing, see 16 Ann. Cas. 964. See, also, under (1) 31 Cye 398; (2) 11 Cye 742; (3) 33 Cye 1129, 1132; (4) 33 Cyc 1047; (6) 38 Cye 1633, 1658; (6) 13 Cye 378.