64 Ind. App. 663 | Ind. Ct. App. | 1917
Appellee recovered a judgment against appellant for $2,000 as damages for the killing of his decedent at a public street crossing in the town of Charlestown. Appellant assigns as error: (1) The overruling of its demurrer to the first paragraph of amended complaint; (2) the overruling of its demurrer to the second paragraph of amended complaint; (3, 4) the overruling of its motion for judgment on the answers to interrogatories, and for a new trial, respectively.
Appellant next insists that the court erred in overruling its motion for judgment on the answers to Interrogatories. The principles of law applicable to such question are set out in the former opinion, as is also an abstract of the pleadings which we here adopt.
Appellant’s chief contention may well be stated in two propositions: First, the findings indicate a condition of contributory negligence, which bars the right to recover; and, secondly, the facts found “show that the alleged next of kin had no pecuniary interest in the life of the deceased, for the reason that none of them were dependent upon her.” (Our italics.)
Giving to appellant the benefit of a construction of the interrogatories and answers most favorable to it, which we are not required to do, they show upon this phase of the question in substance the following: For ten years prior to her death decedent resided within from sixty to eighty feet of the' crossing where she was
There was a driveway on and along Water street, the center line of which coincided approximately with the center line of said street. This driveway was about sixteen feet in width. There was a tile drain pipe beneath the driveway east -of the railroad track, which extended from north to south, the north end of which was within eight feet of the sidewalk on the north side of said street. Decedent was north of the north end of the tile drain pipe when she was struck and injured. Decedent did not travel from the west to the east side of the railroad track and thence to a point north of the tile drain after her daughter left her and before she was struck and injured. Water street was
In answer to other interrogatories the jury found that there were embankments and trees which obstructed a full view of the railroad tracks to the north, and that there was a train on a siding or railroad track south of decedent, the locomotive enginé of which was puffing, sounding its whistle and ringing its bell when she started to walk northwardly and across said railroad track.
The rule contended for by appellant — that a person approaching a railroad crossing is bound to see what could have been seen and to hear what could have been heard — is not applicable to the circumstances shown to exist in this case. Dieckman v. Louisville, etc., Traction Co. (1909), 46 Ind. App. 11, 16, 89 N. E. 909, 91 N. E. 179; Union Traction Co., etc. v. Haworth (1918), 187 Ind.-, 115 N. E. 753; Lutz, Admr., v. Cleveland, etc., R. Co., supra,
As affecting the second proposition the following interrogatories and answers are set out:
3. “Was not decedent’s daughter, Mae Stierheim, living with her mother and dependent upon her for support, advice and assistance at the time of her death? Answer. Yes.”
“Was decedent’s son, Arthur Stierheim, living with his mother, and depending upon her for help, advice and assistance, at the time of her .death? Answer. Yes.”
“Was the deceased a widow? Answer. Yes.”
“Was Mae Stierheim between 24 and 25 years of age at the time of the death of the deceased? Answer. Yes.”
“Was Arthur D. Stierheim a man about thirty years of age at the time of his mother’s death? Answer. Yes.”
“Was Walter A. Stierheim, Charles E. Stier*669 heim, Bertha Henderson and Tille A. Marrow all surviving children of the deceased? Answer. Yes.”
“Was Walter A. Stierheim dependent upon his mother? Answer. No.”
“Was Charles E. Stierheim dependent upon his mother? Answer. No.”
“Was Bertha Henderson dependent upon her mother? Answer. No.”
“Was Tillie A.' Marrow dependent upon her mother? Answer. No.”
“Considering the said Lydia Stierheim’s age at the time of her death, the increased care and attention she would have required as she advanced in years, and her increasing disability for work, what was the actual pecuniary loss to her children, or to any or either of them, by her said death?
Answer. Two thousand dollars ($2,000.00).”
_ “Considering the said Lydia Stierheim’s age at the time of her death, and the increased care and attention she would likely have required as she advanced in years, and her increasing disability for work, and considering the ’reasonable value and .cost of her maintenance and care, what was the actual pecuniary loss to her children by reason of her death? ' Answer. Two thousand dollars ($2,-000.00).”
The answers to the interrogatories are not in such conflict with the general verdict as could not be removed by evidence admissible under the issues; therefore, the general verdict must stand.
This was not a mandatory instruction, and, when
No reversible error having been pointed out, the judgment is affirmed.
Note.. — Reported in 116 N. E. 429. Wrongful death: action, who are “dependents” within meaning of statute, Ann. Cas. 1912B 733, 13 Cyc 321.