21 Ind. App. 10 | Ind. Ct. App. | 1898
Appellant brought this action against appellee and the Pittsburgh, Cincinnati, Chi
It is the law in this State that a person approaching a railroad crossing, known by him to be dangerous, must exercise care in proportion to the danger to be avoided; that he must use his senses, must listen for signals or the noise of approaching trains, must observe signs put up as warnings, and look for trains where there is a view of the track; that if he is injured at a crossing the fault is prima facie his own, and he must show affirmatively that his own negligence did not contribute to the injury; that in approaching the crossing he must assume that there is danger and act with ordinary care and prudence on that assumption. See Chicago, etc., R. Co. v. Hedges, 118 Ind. 5; Ohio, etc., R. Co. v. Hill, 117 Ind. 56; Louisville, etc., R. Co. v. Stommel, 126 Ind. 35; Smith v. Wabash R. Co., 141 Ind. 92; Cincinnati, etc., R. Co. v. Duncan, 143 Ind. 524; Pennsylvania Co. v. Myers, 136 Ind. 242.
It is argued by counsel that the finding of the jury of the ultimate fact that appellant, in approaching the crossing, exercised all the care ordinarily exercised by prudent persons under similar circumstances, must be regarded as a determination of the question of contributory negligence by the jury. Where, upon the facts found, two' or more inferences may be drawn therefrom, the finding of such ultimate fact by the jury is proper. Cincinnati, etc., R. Co. v. Grames, 136 Ind. 39. But where the jury find the facts, in
Taking the specific facts found, we cannot say that they are such as warrant the finding of such ultimate fact by the jury. Such a conclusion is not consistent with the particular facts found. When the jury find precisely what the complaining party did and what she did not do, as in this case, the question of her negligence becomes one of law, and the jury’s conclusion must give way. The rule announced in Cincinnati, etc., R. Co. v. Grames, supra, is not questioned, but it has no application to the case at bar. Where the jury returns a general verdict, they are required to find, and do find, the ultimate fact as to the care exercised by the injured party, and, if there is some evidence to support such a conclusion, it must stand without reference to what an appellate tribunal may think about the preponderance of the evidence. What the injured party did in such case is concluded by the jury from all the evidence, and, when there is some evidence from which the jury can say that the complaining party acted as a reasonably prudent person would act under like circumstances, such conclusion must stand. Louisville, etc., R. Co. v. Williams, 20 Ind. App. 576. But when the jury return a special verdict, and state; as facts, what the complaining party did, and there can be but one conclusion drawn from such facts, it is the duty of the court to state such conclusion as matter of law. The cases holding a railroad company
It is true that a traveler approaching a crossing has a right to presume that the law will be obeyed, but in acting upon that presumption he is bound to exercise due care, under the circumstances. He has no right to rely entirely upon receiving the warning signals required by law, and approach the crossing without looking and listening for the approach of trains. In determining the conduct of the complaining party in approaching a crossing, the jury have the right to take into consideration the absence of statutory signals, but the absence of such signals does not excuse such party from the exercise of due care. Miller v. Terre Haute, etc., R. Co., 144 Ind. 323; Baltimore, etc., R. Co. v. Conoyer, 149 Ind. 524; Pennsylvania Co. v. Stegemeier, supra; Louisville, etc., R. Co. v. Williams, supra. Taking the specific finding of facts as to what appellant did as she approached the crossing, and the further findings of the jury that if she had listened attentively she could have heard the approaching train, and that if she had looked attentively she could have seen the flagman waving his flag to give
The third paragraph of complaint seeks to recover for a wilful injury. It is charged in this paragraph that appellee caused its train to approach and pass over the crossing “at a rate of speed of twenty-five miles per hour, in known and purposed violation of the speed ordinance of the city of Tipton,” that appellee “wilfully failed and omitted to sound the whistle of said locomotive for said street crossing,” and “wilfully omitted to maintain a flagman at said crossing,” that the flagman was “wilfully away from his post of duty and wilfully failed to warn the plaintiff of the approach of said train;” that appellee “wilfully caused said locomotive and train of cars to come into close proximity to said horse and plaintiff while then and there about to cross said railroad at said point,” and “then and there and thereby wilfully and illegally and in known and purposed violation of the statute, * * * frightened said horse, * * * and thereby wilfully and illegally, as aforesaid, caused him to quickly turn round and upset said buggy in which plaintiff was riding,” causing her injury,— “all of which said wounds and injuries herein mentioned were received by her without any fault or negligence on her part.” The complaint does charge that a number of acts were wilfully done, but it does not charge that appellee wilfully injured appellant. Because appellee wilfully failed to sound the whistle, and wilfully ran the train at an unlawful speed, and -the flagman was wilfully away from his post of duty, and the other acts enumerated were wilfully done, it .does not necessarily follow from the pleading that there was any intention to injure anyone. The plead
Comstock, J., took no part in this decision.