35 Ind. 510 | Ind. | 1871
This action was brought by the appellee against the appellant, and it was alleged, in the complaint that the Indianapolis, Crawfordsville, and Danville Railroad Company was, on the 20th day of September, 1869, using, operating, and running a certain locomotive, together with a train of cars thereto attached, on the Union track, in the city of Indianapolis, Indiana, at a point on or near Delaware street, in said city; and that since said 20th day of September, 1869, said Indianapolis, Crawfordsville, and Danville Railroad Company, had consolidated and entered into articles of consolidation with the Danville, Urbana, Blooming-ton, and Pekin Railroad Company, whereby said two corpo
A motion for a new trial was made by the defendant, for the reasons, that the verdict was not sustained by sufficient evidence, was contrary to law, and because the court refused to give instruction No. 5, asked by the defendant. This motion was overruled, the defendant excepted, judgment was rendered, and thirty days were given in which to file the bill of exceptions. The bill of exceptions was filed within the time limited, and professes to set out all the evidence given in the case.
The only error assigned is the refusal of the court to grant the new trial.
It appears from the evidence that Gill and others were at work repairing the Union track, but the repairs were such as did not prevent trains from passing over the road at that point. The train in question was backing. Those who were working with Gill got out of the way. He was standing on or near the south rail at work. The bell of the locomotive was ringing. There were four or five cars in the train. Some one called out, “look out,” when Gill, instead of stepping back, for some cause stepped forward on the track, and was struck by the cars, knocked down, and some of the cars passed over him, killing him almost immediately. A brakeman was on the rear end of the car farthest from the locomotive, but the brake on that car was out of order. The engine was at the other end of the train, and there does not appear to have been any means of communicating with the engineer, so as to stop the train or prevent accidents. No one went in front of the backing train to warn persons of danger or to clear the way. The engineer had left his engine; and gone to get a drink, leaving the engine in the hands of the fireman, who had charge of it at the time of the accident. He was not an engineer. The fireman and
We would not be warranted, in 1/his state of facts, to say that the evidence was not sufficient to justify the verdict of the jury.
The instruction asked and refused was as follows: “5. If/, at the time the deceased was killed, it was his duty to be-engaged upon the track at that place, and he might have-seen the approach of the train by exercise of reasonable care, as by looking up, then the failing to do so, if he did: - so fail, was negligence on his part, and if such negligence contributed to the injury, then the jury should find for the defendant.”
We think this instruction was correctly refused. It asserts that if the deceased might have seen the train by looking-up, it was his duty to do so; and if he failed to look up, he was guilty of negligence, and the action could not be sustained. .The evidence shows that the deceased did look up, but we think it most probable that when lie did so, the train was so close upon him that, in the confusion of the moment, he stepped in the wrong direction, and thereby lost'his life. He is not to be charged' witli negligence because he did not, when suddenly startled by .the cry of danger, or by the near approach of the train, do exactly what one not exposed to such peril might think he might or ought to have done.. When a train is moving forward in the ordinary way, with-the locomotive in front, a skilful and careful engineer, with a competent number of brakemen and other assistants, the train moving at the rate of only three or four miles an hour; as was the case here, there cannot be much danger-to - life, even in passing through or across the streets of a populous-city. But when the train is backing, at a point where people f are-passing and engaged in work on the track of the road;: the engine, as in this case, being at the rear end of the train] as then moving, common prudence and ordinary care would] seem to require more diligence to avoid damage to persons:
The judgment is affirmed, with; costs, and five per cent, damages.
Petition for a rehearing overruled.