53 Ind. App. 47 | Ind. Ct. App. | 1912
The interrogatories answered by the jury set out in narrative form are in substance as follows: Appellee’s intestate, Henry G. Reasoner, was killed by a car on appellant’s traction line about 11 o’clock, August 8,1908, at a highway crossing about one-third mile west of New Palestine, Indiana. Appellant’s traction line at said crossing parallels the Cin-' cinnati, Hamilton and Dayton Railway Company’s track and runs forty-nine feet and six inches north of the side track. At said point appellant’s traction line and said railroad tracks all run about east and west and the highway on which appellee’s decedent, was killed, while traveling north thereon, at said point runs north and south. The decedent had lived about one-fourth mile north of said crossing for about seven years, had crossed it frequently, was acquainted with it and knew the location of said railroad tracks and traction line at said point. There was a large number of freight cars standing on said side track on each side of said highway extending from said highway east to a point about opposite the passenger station of said railroad. Decedent was driving two horses hitched to a wagon on which there was a hay-frame. Decedent had owned and used these horses for about seven years and had frequently driven them over said crossing and between said freight cars. At the time he was killed decedent was about thirty-two years of age, had good sight and hearing, and was then familiar with the location of said freight cars and acquainted with the running of cars on appellant’s traction line at said crossing. He was killed by a west-bound car which had stopped at New Palestine .to take on and discharge passengers, and said ear approached said crossing on schedule time running about
We have set out in narrative form the substance of all affirmative answers to the interrogatories. The negative answers find in substance that the decedent did not drive his horses across the railroad side track in a trot and that the evidence “was insufficient” for the jury to say that the traction car was about 150 feet east of the crossing when the motorman first saw the team of decedent on the highway or what distance the car was away from the crossing when the motorman first saw the team, but that he could have seen the team when he was 200 feet away.
Appellant insists that “this case, under the averments of the complaint, naturally divides itself into two propositions, the first of which is that the motorman in charge of appellant’s ear saw the intestate’s peril in time to stop the car and avoid the collision, but negligently and carelessly failed to do so. The other is that the decedent was himself without fault. ” It is then argued that the answers to interrogatories expressly find that the motorman immediately upon seeing the team and discovering the peril of the decedent did all
Judgment affirmed.
Note. — Reported in 100 N. E. 116. See, also, under (1) 38 Cyc. 1927; (2) 38 Cyc. 1869; (3) 38 Cyc. 1929; (4) 33 Cyc. 1142; 38 Cyc. 1927; (5) 33 Cyc. 1014; (6) 33 Cyc. 961; (7) 33 Cyc. 922. As to a railroad company’s duty to one near to track and in peril from moving train, see 20 Am. St. 114; 82 Am. St. 158. As to the care a railroad company must exercise at highway crossings, see 26 Am. Rep.. 207. On the question of fright of team as excuse for omission to look and listen at railroad crossing, see 21 L. R. A. (N. S.) 415. For a discussion of a frightened or unmanageable team as an excuse for contributory negligence at a railroad crossing, see 16 Ann-. Cas. 954.