65 Ind. App. 233 | Ind. Ct. App. | 1916
Lead Opinion
Appellee, as administrator of the estate of his deceased daughter-in-law, Anna Hiatt, brought this action to recover damages for personal injuries to his decedent resulting in her death, caused by one of appellant’s cars striking her, as she was attempting to cross appellant’s tracks at a private crossing, known as “Hiatt’s Crossing,” in Grant county. A trial before a special judge and jury resulted in a verdict for $4,000, on which judgment was rendered.
" The following points urged in the trial court in support of the demurrer to the complaint are properly presented for our consideration: That the complaint does not disclose by proper averments: (1) That appellant owed decedent any duty to exercise care for her safety; (2) or that appellant was guilty of negligence; (3) or that negligence, if shown, was the proximate cause of decedent’s injury and death; (4) that it affirmatively appears from the complaint that decedent was‘guilty of negligence which contributed to her injury and death.
The complaint is substantially as follows: Appellant operated an interurban electric railroad from Marion southward through Jonesboro and Summitville to points beyond. The railroad passed through a farm situated between Marion and Jonesboro, upon which decedent lived with her husband and children. The farm residence was about 150 feet east of the railroad. A private road extended across the farm passing westward near the north side of the residence and thence intersecting the railroad at grade. The intersection was designated by appellant and others as “Hiatt’s Crossing.” Hiatt’s Crossing was, and for a number
“That had said defendant slackened the speed of said car, as its signal indicated, and had it brought its car to a stop at said crossing, as it promised decedent by its said signal that it would do, decedent would have had ample time in which to cross the track in safety, and could and would have safely reached the said place of embarkation, as fixed by defendant aforesaid, and her death would not have occurred.”
With the facts so specifically found, certain others alleged in the complaint must be grouped in reviewing the ruling of the court now under consideration. Thus it had been the uniform practice at this crossing for certain local cars, including the Summitville car, to stop on signal, and also for the motorman in charge of such
Appellant, in support of its contention that the evidence is insufficient to sustain the verdict, states points bearing on the sole proposition that it affirmatively appears from the evidence that decedent was guilty of contributory negligence. We shall therefore confine ouP discussion to the same limits.
Certain instructions given by the court when interpreted in the light of our view of the theory of this case are somewhat short and inaccurate: Thus, by the first and seventh instructions given on the court’s own motion, the court undertook to outline the theory and contents of the complaint. These instructions are short in their exposition of the proximate cause of the injury, as measured by the allegations of the complaint.
As to the second reason, the negligence charged did not consist in the mere fact that the car being signaled did not stop at the crossing. There was no schedule requiring a limited car to stop at that place. It had not been appellant’s custom to stop such a car there. Under ordinary circumstances, a prospective passenger might neither require nor expect it to stop, although signaled. Appellee does not claim that, had the car ignored the signal and continued its trip over the crossing, there would have been any negligence. The negligence as charged here consists in the fact that appellant caused such car, under the circumstances alleged, to assume an appearance at variance with its real nature, and that appellant thereupon failed to operate the car in harmony with its apparent nature. From its apparent nature, thus assumed, decedent was led to believe that, under the circumstances, the car would slow down and stop at the crossing. The fact that always, before the time involved here, a car approaching at that hour responded to the signal as did this car, and that it thereupon slowed down and stopped, induced such be
The death of the appellee having been suggested, the judgment is reversed as of the date of submission, with instructions to sustain the motion for a new trial.
Rehearing
On Petition for Rehearing.
Petition for rehearing is overruled.
Note. — Reported in 114 N. E. 478, 115 N. E. 101. Carriers: duty of, in respect to taking up passengers, 118 Am. St. 470.