35 Ind. App. 554 | Ind. Ct. App. | 1905
Appellee begun this action in the-Miami Circuit Court against appellant fi> recover damages for personal injuries received at the crossing of Broadway street and appellant’s railroad, in the city of Peru, Indiana. On change of venue the case was sent to the Wabash Circuit Court, and there tried by a jury, resulting in a verdict and judgment for appellee. Interrogatories were submitted to the jury, which, with their answers thereto, were returned with their general verdict.
The overruling of appellant’s motion for judgment in its favor on the interrogatories and answers of the jury, notwithstanding the general verdict, is here assigned as error. After a careful examination of the record in this case, it seems to us the real question is presented by this assignment.
The facts in this case, as taken from the interrogatories and answers, may be stated as follows: On February 10, 1902, appellant was a duly organized railroad corporation owning and operating a line of railroad running through the city of Peru, Miami county, Indiana; that appellee was on said date residing near the town of Mexico, about four or five miles north of said city of Peru, and for thirty years continuously prior thereto had there resided; that .appellee’s usual course of travel to said city was along Broadway street in said city; that on said date the Wabash Railroad Company crossed Broadway street in said city with three main and two side-tracks, all running east and west, and appellant crossed said Broadway street with one track running east and west about sixty or seventy feet south of the south track of said Wabash Railroad Company; that between the tracks of the two railroad companies, and on the east side
Every reasonable presumption must be indulged in favor of the general verdict, which is supposed to embody the
In the case at bar the gist of appellee’s action as charged in his complaint, relative to the negligent acts of appellant causing the injury, may be stated in a quotation from the complaint as follows: “That after plaintiff had stopped, * * * said defendant carelessly and negligently, by his said flagman, beckoned to said plaintiff and notified him and directed him to drive on across said crossing in front of said engine; that plaintiff then and there, after being directed so to do, drove, on toward said crossing; that, just as plaintiff’s said horse was crossing said track of said defendant in front of said locomotive,- said defendant carelessly, negligently and intentionally blew and sounded twice, loud and shrill, the whistle on said locomotive, and'thereby caused plaintiff’s horse to scare and take fright, and scared and frightened said horse, and caused him to run away and throw plaintiff out of his sled upon the ground,” etc., describing plaintiff’s injuries.
The facts as specially found by the jury clearly show that appellant’s employes and servants did not do any needless or unnecessary act while in the performance of their duty and work about which they were then and there engaged, but that which was done was performed in the common and usual way of conducting such business. Appellant had the right to conduct its business and handle its train at that point in the usual and ordinary way, and, from the facts and circumstances as then appearing, it was not bound to wait until the crossing was clear before giving notice of its intention to start its train. Appellant’s train was at a place where it had a right to be, and any noise necessary in the proper handling of such train, although such noise be the sounding of the whistle, and at a place of danger, and where horses, were likely to. be frightened thereby, under the circumstances here appearing, was not actionable negligence. Lake Shore, etc., R. Co. v. Butts (1902), 28 Ind. App. 289.
When appellee started across appellant’s tracks in front of its engine, under the facts as specially found by the
Judgment reversed, with instructions to the trial court to render judgment in appellant’s favor on the answers to the interrogatories.