178 Ind. 324 | Ind. | 1912
Action by Plora P. Harrison, a minor, by her next friend, against appellant, to recover damages for personal injuries sustained by her on September 24, 1907, by reason of the negligence of appellant in leading appellee into danger, by the invitation and direction of a flagman maintained by appellant at a temporary grade crossing, because its invitation or direction was an assurance of safety on which appellee had a right to rely. The complaint was in one paragraph. Answer of general denial and trial by jury resulted in a finding and verdict for appellee for $9,000. The court rendered judgment on the verdict. Appellant filed a motion for new trial, which was overruled.
The error relied on by appellant for reversal is the overruling its motion for a new trial.
Appellant next complains of instruction four, given by the court of its own motion, which is as follows: “The plaintiff can not recover if she, by her own negligence, proximately contributed to her own injury. The burden of establishing such contributory negligence is on the defendant. Negligence on the part of the driver can not be imparted [imputed?] to the plaintiff.”
We think that the invitation or direction of the flagman was an assurance of safety on which appellee had a right to rely, and that the action of appellee in entering on said crossing was justified by the appearance of safety created by appellant.
This court, speaking by Jordan, J., in Louisville, etc., R. Co. v. Schmidt (1897), 147 Ind. 638, 650, 46 N. E. 344, said: “The authorities affirm that when a person rides up to a railroad crossing, by the invitation or direction of a flagman or gate-keeper there stationed, and is injured at such crossing from trains, machinery or appliances of the railroad company, he has the right to recover, because the invitation or direction was an assurance of safety upon which he had a right to rely. ’ ’
This court, speaking by Jordan, J., in City of Michigan City v. Phillips (1904), 163 Ind. 449, 457, 71 N. E. 205, said: “ ‘No precise rule can be laid down for tbe award of compensation in cases of this kind, where tbe injury sustained is permanent, and will entail constant suffering upon tbe injured party. Tbe mere fact that tbe damages may appear to this court on appeal to be excessive will not alone justify it in disturbing tbe judgment, unless tbe assessment is so large as to induce tbe belief that tbe jury was actuated by prejudice, partiality or corruption.’ ” We do not feel that such belief has been induced.
We see no .error in tbe record that would warrant a reversal. Judgment affirmed.
Note.—Reported in 98 N. E. 729. See, also, tinder (1) 29 Cyc. 644; (2) 38 Cyc. 1693; (3) 3 Cyc. 348; (4) 33 Cyc. 1035; (5) 3 Cyc. 381. As to the burden of proof to prove or disprove contributory negligence, see 28 Am. Rep. 563; 39 Am. Rep. 511; 58 Am. Rep. 229. As to the duty of a traveler to use his senses to avoid danger at a railway crossing, see 90 Am. Dec. 780. As to the duty of railroad companies to keep flagmen at crossings, see 100 Am. Dec. 412; 17 Am. Rep. 363; 37 Am. Rep. 443. On the question of the duty of one crossing railroad track as affected by flagman’s signal to proceed, see 15 L. R. A. (N. S.) 803.