56 Ind. App. 540 | Ind. Ct. App. | 1914
Appellee brought this action to recover damages from appellant for personal injuries alleged to have been sustained by reason of a collision, due to appellant’s negligence, between one of appellant’s ears and an automobile which appellee was driving on a public highway in Huntington County.
In the first paragraph of complaint appellee avers that when approaching the crossing over appellant’s tracks he looked and listened for an approaching car and not seeing or hearing one he started to drive over the tracks, when appellant’s car negligently running at the rate of fifty miles an hour, without giving any signal, ran into his automobile and injured him. The second and remaining paragraph of complaint is in all essentials similar to the first, but charges in addition that while appellant’s servants, driving its car, were approaching the crossing, they saw appellee in a dan
Of the errors assigned in appellant’s motion for new trial only two are presented for our consideration, that is, error in overruling appellant’s motion for judgment in its favor on the answers to interrogatories, and error in rendering judgment for appellee and against appellant. Both of these assignments may very properly be considered together.
It is insisted by appellant that the answers of the jury to interrogatories show that due care was not used by appellee, and that the injuries received by him were received solely on account of his own contributory negligence. The answers show that the collision in question occurred on September 8, 1911, between five and six o’clock in the evening, and at a public road crossing in Huntington County. The highway crossed appellant’s interurban track at nearly right angles, at grade, and for about 1,700 feet west of the crossing, the direction from which the ear was moving which collided with appellee’s automobile, appellant’s track ran in almost a direct line. Appellee frequently, prior to the date of the collision passed over the same crossing and knew that appellant was operating its cars over the crossing every hour of the day. Appellee stopped his car when he was about fifteen feet from the track, or between fifteen and thirty feet. If he had stopped when fifteen feet from the track, he could have seen the car approaching in time to have
Interrogatory No. 43 is, “Could plaintiff with his automobile, if he had approached said crossing at a reasonable rate of speed, have seen said car approaching in time to have avoided the receipt of his alleged injuries and damage to his automobile?” A. “Yes.” Interrogatory No. 55 is, “At the point where you find plaintiff stopped his said automobile for the purpose of listening for the approach of a car on defendant’s track, could he have heard the approach of a car on defendant’s said track?” A. “Yes.” By interrogatory No. 56 it is found that he stopped the automobile but once to ascertain if a car was approaching on appellant’s track. Interrogatory No. 57 is, “Did plaintiff when operating his automobile on said public highway before attempting to cross defendant’s interurban railroad track, at a time and place where he was in safety, stop his automobile where he could by looking and listening ascertain the approach of defendant’s car, which he alleges caused his injuries and damages?” A. “No.”
We are satisfied that the general verdict is overcome by the answers to the interrogatories by which it is shown that
From the facts found we are satisfied that appellee, if he had acted with ordinary care and caution both as to looking and listening at some advantageous point, and had approached the crossing at a reasonable rate of speed, would have avoided his injury, but he apparently ignored an important duty which the law imposed upon him, and this conduct must prevent a recovery. Judgment reversed with instructions to the trial court to render judgment for appellant on the answers to the interrogatories, notwithstanding the general verdict.
Note. — Reported in 105 N. E. 924. As to contributory negligence of persons approaching track and failing to look for coming trains, see 51 Am. Rep. 360. As to accidents to automobiles at railroad