81 Ind. App. 498 | Ind. Ct. App. | 1922
Complaint against appellant for the alleged negligent killing of appellee’s decedent. The errors assigned and relied upon for reversal are that the court erred in overruling the motion for judgment on the answers to the interrogatories and in overruling the motion for a new trial.
The complaint alleges that appellant owned and operated an interurban railway between Morristown and Indianapolis, said line, running in a westerly direction from Morristown to Indianapolis; that at a point about one and a half miles west of Morristown, at what is known as Stop 16, appellant’s tracks are laid in a long-cut about ten feet deep, and, to the west of said stop, curve about five feet in a distance of 672 feet, and are up-grade about six feet in said distance; that about 185 feet south of appellant’s tracks at said Stop 16, and running parallel therewith, are the tracks of the Cincinnati, Indianapolis and Western Railroad in .a cut about fourteen feet deep; that a public highway runs from the south down into the cut and over said railroad track, then up an incline for a distance of eighty-five feet, where the public road is six feet higher than the railroad track, then north and down grade for about 100 feet, over and across the track of appellant at Stop 16, where said highway crosses appellant’s railroad at
The jury returned a verdict in favor of appellee in the sum of $1,000, and, in answer to interrogatories, found the following facts: The crossing where the decedent was killed was about one and a half miles west of Morristown and outside the corporate limits of any city or town. The highway ran north and south, and the railway straight east at least 3,000 feet. The interurban car was traveling between fifty and sixty miles an hour, was equipped with a brilliant headlight twelve or thirteen feet above the ground and which was burn
Appellant contends that the answers to the interrogatories conclusively show that appellant was not guilty of negligence as charged. The complaint, after alleging facts relative to the location of appellant road, the location of the railroad to the south, the cuts through which both roads ran, the obstructions to the east, preventing travelers from seeing and hearing the approach of an interurban car from the east, that decedent was not familiar or acquainted with the road over which she was traveling or the' crossing over appellant’s railway, alleged that appellant knew the dangerous conditions surrounding said crossing, that the approach of its car from the east could not be seen or heard by travelers on the highway until within a very shbrt distance of the track, that appellant negligently failed to give any warning of the approach of its car until within fifty feet of the crossing, that it also failed to give the statutory signals between eighty and one hundred rods from the crossing and negligently ran its car at a high and dangerous speed, viz., sixty miles an hour:
It is true, as contended by appellant, that the motorman did everything in his power to stop the car after he discovered the perilous situation of the occupants of the automobile, and that the facts found by the jury in answer to interrogatories are sufficient to show that appellant was not guilty of any negli
It is also contended that the special facts as found by the jury show that the decedent was guilty of contributory negligence; that the driver of the automobile was her agent; and that his -negligence was her negligence. True, there was no compulsion or absolute necessity for the decedent to have taken the trip in the automobile, but the fact that she accepted an invitation to go along with the other passengers in the automobile as a matter of pleasure on her part does not necessarily make the driver of the automobile her agent in driving the car and prevent a recovery. Neither the complaint nor the answers to the interrogatories support the contention that the decedent and the other occupants of the automobile were on any joint enterprise. Neither do the answers show, as a matter of law, that the decedent was guilty of contributory negligence. There was no error in overruling the motion for judgment non obstante.
The next contention of appellant is that the evidence, shows conclusively that the decedent was guilty of contributory negligence. The complaint alleges and the jury, by its general verdict, found the decedent was not familiar with the highway on which she was traveling or its crossing over appellant’s tracks or the dangerous condition of the crossing and that, by reason of the conditions, objects and noises from
The next contention of appellant is that the damages assessed are excessive. This action is prosecuted under §285 Burns 1914, Acts 1899 p. 405, which provides: “When the death of one is caused by the wrongful act or omission of another, the personal representatives of
The decedent in the instant case left surviving her a husband and a father and mother. Appellant insists that the beneficiaries in this action are controlled by said §285 Burns 1914, supra, and not by the statute of descent, and argues that the statute provides two classes — class 1, consisting of widow or widower and children; class 2, next of kin, including father and mother; and that, where there is a survivor in one class, such person or persons, if more than one, take to the exclusion of all persons in the second class. Applying this contention to the instant case, appellant insists that since the decedent left a husband, he takes to the exclusion of father and mother, and that, since the decedent and her husband had not lived together for over two years, and neither had contributed to the support of the other, and there being no evidence on which to base any pecuniary damages in favor of the husband, the recovery must necessarily be for his benefit and could not be for more than nominal damages.
In Dillier v. Cleveland, etc., R. Co. (1904), 34 Ind. App. 52, the court said: “The action must be brought, and must be maintained to the end, by the personal representative of the person for whose death the damages are sought. He pursues the remedy, not for the benefit of his decedent’s estate, but as a convenient trustee specially designated by the statute to recover and distribute the damages for the beneficiaries recognized as such
In Pittsburgh, etc., R. Co. v. Reed (1909), 44 Ind. App. 635, the decedent left surviving him four sons and three granddaughters, the father and mother of the latter being dead. These granddaughters were all minors and had lived with the decedent as a part of his family for about twelve years, and were pecuniarily damaged by his death. Notwithstanding there- were members of the first class living (the four sons), it was there held that the action was properly prosecuted for the benefit of the grandchildren, who were members of the second class. The court, after citing and quoting from Dillier v. Cleveland, etc., R. Co., supra, said: “But if, as in this case, the decedent left no widow, but left surviving children who were not pecuniarily injured by his death, and at his death there were no beneficiaries of the first class, but there were, at the time of his death and at the time of the trial, beneficiaries of the second class, being next of kin, who were in fact pecuniarily injured by his death, such next of kin come within the intention of the legislature in designating the beneficiaries for whom the action may be maintained. * * * In the absence of beneficiaries of the first class, who have suffered pecuniary loss, the damages should go to the ‘next of kin’ shown to have suffered loss as contemplated by the statute and the decisions of the courts construing it.”
In the instant case, the decedent left a husband, but the evidence is sufficient to sustain a finding that he had abandoned her without cause and without making any provision for her support. Having thus abandoned his wife, he forfeited his right as husband and widower, and no action could be maintained by the administrator for his benefit. So far as his right to participate in the distribution of her estate or in the distribution of the damages awarded on ac
Appellant contends that the husband having survived, he is entitled to nominal damages, and being so entitled, the whole of the award must be paid to him; that there can be no division of the damages between the first class and the second class. Conceding that there can be no division of the damages between the two classes of beneficiaries, the husband, in the instant case, has no more right in the damages awarded than if he were dead or divorced. There is, therefore, in fact, no member of the first class, and there is ample evidence to sustain a finding that the father and mother were to a certain extent dependent upon the decedent, and we hold, under the facts in this case, that this action was properly prosecuted on their behalf, and that the damages assessed are not excessive.
We are aware of the fact that there are cases holding that where a man has abandoned and deserted his wife and children, and one of his minor children has been killed, that an action cannot be maintained by the administrator for the benefit of the mother of the child. Thus in Thompson v. Chicago, etc., R. Co. (1900), 104 Fed. 845, it was held that a father who had deserted his family for years had no legal claim upon the earnings of his minor child, the desertion operating as an emancipation, and that since the father was, under the statute, the next of kin and sole heir of a minor son whose
These decisions, however, are of no controlling force in this state, as our statutes, §§267, 285, 3036 Burns 1914, supra, are very different from the statute involved in the federal cases just cited.
What we have said concerning the right of the father and mother and the right of the administrator to prosecute this action for their benefit disposes of the contention that the court erred in giving certain instructions.
Appellant also contends that the court erred in admitting and in excluding certain evidence. Some of the evidence admitted over the objection of appellant related to the abandonment of the decedent by her husband and to the pecuniary assistance she had given her father and mother. There was no error in admitting this evidence. Neither was there any error in refusing to permit a witness to testify as to an observation made by him of the approach of a car on appellant’s track, such observation being made in the daytime, at a point 100 feet from the track, that being the highest elevation on the highway between the two railway tracks. Appellant offered to prove by this witness that, at that point, he saw a car approaching 900 feet east of the crossing and that such car could be seen from that point until it reached the crossing. But it will be observed that when the decedent and her companions were at the point where this witness made his observation, the car that struck and killed the decedent was much more than 900 feet east of the crossing and
Other objections are made relative to the admission and exclusion of evidence, but the errors, if any, in this regard were harmless, and it appearing that the merits of the cause have been fairly tried and determined, there was no error in overruling the motion for a new trial.
Judgment affirmed.