Davis v. Welch

80 Ind. App. 334 | Ind. Ct. App. | 1923

Enloe, P. J.

This was an action by the appellee against the appellants to recover damages for the death of her -husband, who was killed by reason of being struck at a public highway crossing, by a train on the Baltimore and Ohio Railroad.

The complaint, which was in three, paragraphs, was answered by general denials. The cause was submitted to a jury which returned its verdict in favor of the appellee. The error assigned is the overruling of the motion for a new trial.

The acts of negligence charged in the first paragraph of the complaint were: (a) failure to sound the whistle for said crossing; and (b) failure to ring the bell on said locomotive as the train approached said crossing. The negligence charged in the second paragraph of the complaint, was the failure to stop said train after the'engineer discovered the deceased on the track of said railroad, and in a position of peril. The negligence charged in the third paragraph was, in addition to the failure to ring the bell or sound the whistle, the allowing of said crossing to become and remain out of repair, thereby rendering the use of said crossing “difficult, unsafe and dangerous and difficult to cross with vehicles,” thereby delaying the reasonably speedy crossing thereof.

Counsel for the appellants in their brief filed herein say: “We present this case to the court solely upon the evidence. Aside from the question as to whether the whistle on the locomotive was blown, there was no evidence whatever to sustain the verdict. We candidly state * * * that the sufficiency of the evidence, or rather, its insufficiency, is the sole matter to be considered.”

If there was any competent evidence tending to establish any one of several acts of negligence charged in the complaint, and if the deceased came to his death, as the proximate result of such act of negligence, then the verdict of the jury must stand.

One of the acts of negligence charged was in reference to the condition in which said highway crossing was maintained. In this connection we note that one witness testified concerning the crossing that there was a hole or ditch between the crossing boards; that the inside board was six feet shorter than the outside board; that six feet of the board was gone. Another witness, testifying concerning these boards, said: “If a person drove up there and supposed the board was the same length as the other part, he would drop off the depth of the rail.” Another witness testified that: “When Welch drove away I noticed him; he got on the railroad track; it seemed like about the time he/hit the track his machine came to a stop, * * *, his car choked down; it was done so quick a fellow could not tell whether it stopped dead, or choked down on the crossing; it stood there for a few seconds and the engine hit him.”

This evidence, we think, is abundantly sufficient to establish the fact of negligence in the matter of maintaining said crossing, and furnished the jury a basis for finding that such negligence was the proximate cause of decedent’s death; it therefore supports the verdict as- rendered by the jury.

The judgment is affirmed.