51 Ind. App. 110 | Ind. Ct. App. | 1912
— Appellee sustained personal injuries in a collision with one of appellant’s trains at Cass street crossing, in the town of Cicero. In an action to recover damages for such injuries, judgment was rendered in the court below in favor of appellee and against appellant. From that judgment appellant has appealed to this court, assigning as errors, (1) the overruling of its motion for judgment on the answers to interrogatories, and (2) the overruling of its motion for a new trial.
This cause is here for the second time. Lake Erie, etc., R. Co. v. Moore (1908), 42 Ind. App. 32, 81 N. E. 85, 84 N. E. 506. The complaint alleges negligence of appellant, (1) in running its engine and train of cars against appellee and' his team and carriage, with great force and violence; (2) in running its engine and train of cars at a high and dangerous rate of speed, to wit, thirty miles an hour, across Cass street, which Avas “much used by the traveling and general public”; (3) in failing and omitting to sound a whistle or ring a bell, or to give any warning, notice or signal of the approach of said engine and train of cars toward said crossing; that appellant had and maintained at said crossing no watchman, flagman, person, gate, or other means of notifying
The answers of the jury to fifty-six interrogatories, in substance, show that at the time of the accident, which occurred in the daytime on December 26, 1903, appellant maintained one main track, and one side-track across Cass street, in the town of Cicero. These tracks were parallel, the center of the side-track being thirteen feet east of the center of the main track, and north of Cass street they were not “practically straight” for 300 feet. On the north side, and fronting’ on said street, eight feet east of the side-track and twenty-three and one-half feet east of the main track, there was a mill and elevator. Two box-cars and one coal-car were standing on the side-track. One of-the box-cars extended about ten feet south of the elevator. These cars, mill and elevator increased the danger of the crossing. Appellant’s only means of signaling the crossing was by ringing the bell on the locomotive, or sounding the whistle. The whistle was sounded at the usual whistling post, at the bridge at the north corporate limits of the town, and was not sounded at the private road crossing about 300 yai’ds north of Cass street. The bell was not ringing from a point at least 200 feet north of, nor when the engine reached the crossing. The train which collided with appellee came from the north, and was one hour behind its regular schedule time for arrival at Cicero. Appellee knew the schedule time for its arrival, and tha¿ it was late, and had no reason to believe that it had passed the crossing, and might have had reason to believe that it was approaching the crossing from the north. He was a person of ordinary intelligence, had good eyesight and hearing, and on said day was familiar with the location of said crossing, tracks, buildings and structures. He approached the crossing on Cass street from the east, and when on the east side of Peru street he stopped and listened for an approaching train. He did not stop when within ten feet of the side-track, nor when between
The complaint states that he was driving west on Cass street with a team of horses hitched to a carriage, in which carriage he was seated, and that he proceeded carefully and cautiously toward the crossing. From these facts, and the answers of the jury, the conclusion might be drawn that had appellee stopped and listened attentively when his horses were on the side-track, and approximately ten feet from the main track, he could have heard the train. Otherwise he did everything that might be expected from a prudent and cautious person under all the circumstances surrounding him at the time. If his failure to stop and listen when his horses reached a point less than ten feet from a passing train, and wffiere he could not have seen an approaching train, was not the conduct of an ordinarily careful and prudent person, in view of the conditions there existing— and of this fact there could not be an honest difference of opinion among men of equal intelligence — then the question whether he used due care would not be one for the jury, and appellant’s claim should be sustained.
The facts specially found by the jury are not in irreconcilable conflict with the general verdict.
It is a well known fact that the place where railroad
There is no claim that appellant used any moans to warn
Technically this instruction is incorrect, for failing unmistakably to connect the stated omissions with the injury; but taking the instruction as a whole, we are convinced that no reasonable person could have understood from the language used that the court had reference to any injuries sustained by appellee, other than those proximately caused by appellant’s act in running its locomotive and cars at a high rate of speed, and its omission to ring the bell or sound the whistle. The error was therefore harmless.
No error intervened by the giving of instruction one.
Judgment affirmed.
Note. — Reported in 07 N. E. 203. See, also, under (1) 33 Oyc. 1070; (2, 3) 33 Cyc. 1142; (4) 33 Cyc. 1010; (5) 33 Cyc. 1110;