43 Ind. App. 19 | Ind. Ct. App. | 1909
Appellee sued the appellant to recover damages to appellee’s horse and buggy occasioned by being struck by appellant’s train on a public highway crossing in Benton county, Indiana.
A demurrer for want of facts was overruled, the cause put at issue by a denial and a trial had, resulting in a verdict and judgment for appellee for $188. The jury returned with their verdict answers to interrogatories. Appellant’s motions for judgment on the answers to the interrogatories and for a new trial were overruled.
Said first and second specifications challenge the sufficiency of the complaint. Against the sufficiency of the complaint, it is urged tfeat, although it alleges that appellee was free from fault contributing to the accident, the specific facts alleged show that he was guilty of contributory negligence.
The other questions properly arise on the motion for a new trial.
An exception was taken by appellant to the refusal of the court to give instructions six, seven, eight, eleven and twenty-three. Instructions two, six and eight were covered by one, two, four, seven and twenty-five, given.
It is ably argued in behalf of appellant that physical facts, evidenced by measurements and photographs, show that if appellee had properly used his senses of sight or hearing he must have known of the approach of the train in time to avoid it. But there is evidence to show that the surface conditions between the time of the accident and the taking of the measurements and photographs had changed, besides the atmospheric conditions, as they existed, are not reproduced. Whatever conflict in the testimony was thus created has been passed upon by the jury adversely to appellant. Another jury mig’ht have reached a different conclusion. We cannot say that the verdict was without support in the evidence. The instructions given fairly stated the law.
Judgment affirmed.