41 Ind. App. 435 | Ind. Ct. App. | 1908
The appellee’s intestate was killed by being struck by appellant’s locomotive drawing a fast passenger-train over appellant’s road, the accident occurring on the night of July 23, 1900, at the crossing of appellant’s road and Wayne street, in the town of Waterloo. This action was brought to recover damages for the death of the intestate, which the appellee charges was caused by the negligence of the appellant. There was a jury trial, resulting in a general verdict in favor of appellee. With their general verdict the jury returned answers to interrogatories submitted to them by the court. The appellant unsuccessfully moved for judgment in its favor on answers to interrogatories, and judgment was rendered in favor of the appellee on the general verdict.
One of the errors assigned and urged here for a reversal is the overruling of appellant’s motion for judgment in its favor on the answers to interrogatories. It is insisted by appellant that the answers to the interrogatories show contributory negligence on the part of the deceased, and present the question of negligence as a question of law for the court. Appellee insists that the facts specially found are not sufficient to overcome the legal presumption, in favor of the deceased, that he used due care, and that, under the facts found, the question of contributory negligence was for the jnry.
Interrogatory fifty-five, and answer, are as follows: “As Emmett Brown approached the point on defendant’s track on Wayne street where he was struck and killed by a collision with the defendant’s train as alleged in the complaint, if he had diligently and carefully looked and listened for the approach of said train, could he have heard or seen such train in time to avoid the same before he went upon the track where he was struck? A. Yes.” There was no contradiction of these facts contained in the answers to the numerous interrogatories that were filed, and these undisputed facts leave no room for a difference of opinion among reasonable men as to the deceased’s negligence.
It is said by the Supreme Court of this State, in the case of Chicago, etc., R. Co. v. Hedges, supra: “Where a railroad crosses a public highway upon the same grade, the situation is itself a warning and an incentive to one about to cross to exercise vigilance, to the full extent of his opportunities, in the use of his senses of sight and hearing, in order to assure himself whether or not a train is approaching, so as to avoid collision; and where it appears that a collision might have been avoided by the use of readily-available precautions, there remains no ground for a recovery, unless an excuse be shown for such an extraordinary omission. ’ ’
The evidence in the case not only justified the answers given by the jury to the interrogatories propounded, but admitted of no other.
Judgment reversed, with instructions to the court below to sustain appellant’s motion for judgment in its favor on the answers to interrogatories.