45 Ind. App. 540 | Ind. Ct. App. | 1909
Lead Opinion
Appellee sued appellant for the negligent killing of appellee’s decedent, Peter Cruse, at a highway crossing on appellant’s line of railroad.
The complaint is in one paragraph, and after fully describing the highway and the railroad at the point of intersection, and the surrounding country, proceeds as follows: ‘ ‘ That on March 20, 1905, plaintiff’s decedent, said Peter Cruse, was driving westward upon said highway toward the town of Zionsville, in a buggy drawn by one horse; that defendant on this occasion negligently and carelessly ran one of its electric cars toward, across and over said crossing at the highly dangerous rate of sixty miles an hour, and carelessly and negligently failed to gire any signal or warning of its approach to said crossing, so that, as a consequence of and solely by reason of said negligence of said defendant, it carelessly and negligently ran its said car over and against said buggy in which plaintiff’s decedent was riding, and over and against said plaintiff’s decedent, whereby plaintiff’s decedent was crushed, bruised, mangled and thrown a distance of 100 feet and instantly killed.”
In this state of the evidence, we cannot say, as a matter of law, that appellant was not guilty of negligence; neither . can we say, as a matter of law, that appellee’s decedent was not exercising due care and was guilty of negligence contributing to his injury, these questions being, under the circumstances clearly questions of fact for the determination of the jury. Pittsburgh, etc., R. Co. v. Lynch (1909), 43 Ind. App. 177. We find no reversible error in the record.
Judgment affirmed.
Rehearing
On Petition for Rehearing.
Petition for a rehearing is denied.