72 Ind. App. 283 | Ind. Ct. App. | 1919
—This action was brought by the appellee to recover damages occasioned by the alleged negligence of the appellant in backing a locomotive and cars against an automobile owned by appellee. A demurrer to the complaint for want of facts was overruled. The issues being closed, there was a trial by jury. Verdict and judgment for appellee.
The complaint, after alleging the incorporation of appellant, its ownership and operation of a railroad across Windsor street in the city of Montpelier, alleged that the appellant, by virtue of an ordinance of said city, was required to and did keep a flagman at the point where its right of way and tracks crossed said street in said city; that it was the duty of the flagman to keep a lookout for locomotive engines and cars approaching on appellant’s tracks and to warn persons traveling on said street of the approach of engines and trains of cars; that on October 17, 1916, appellee was 'the owner of an automobile, and was driving the same on said street from the east desiring
Appellant’s first contention is that the court erred in overruling the demurrer to the complaint, for the reason that the complaint shows that appellee slowed down his car sixty or seventy feet east of the crossing and looked and listened for the approach of trains, and from that point increased the speed of his machine and, in approaching the crossing, failed to exercise his senses of sight and hearing and thereby showed by specific averment that he was not free from fault, and that the specific averment of facts showed contributory negligence, although it contained the averment “that plaintiff was free from fault.”
We do not think there is any merit in appellant’s contention. The complaint, after setting out the facts
The only part of this instruction to which any objection is made is that part italicized. The use of the word “responsible” in the expression “responsible precaution to avoid injury” is evidently a misprint;' but, be that as it may, no objection is made to the instruction because of the use of the word “responsible” instead of “reasonable.” With the word “reasonable” substituted for “responsible,” this instruction is a model to follow, and not subject to the objections urged against it. It is neither misleading nor does it absolve appellee from the exercise of due care as contended, by appellant.
There is no reversible error in the record. Judgment affirmed.