59 Ind. App. 16 | Ind. Ct. App. | 1915
We therefore first indicate the facts pleaded affecting the questions presented by the appeal. Eor this purpose, the substance of the averments of the second paragraph of complaint will be sufficient. Such paragraph alleges that at the time decedent was run over and killed, appellee, by virtue of a contract, lease and traffic arrangement, was operating its trains over the tracks and right of way of the Baltimore, Ohio and Southwestern Railroad Company; that the tracks pass through the town of Charlestown and cross nearly at right angles Water Street in the town, which runs in an eastwardly and westwardly direction; that the street is much travelled and used by the public at all times; that at the point where the railroad crosses the street there is a
It is first contended by appellee in support of the judgment rendered by the trial court that the answers to interrogatories show that appellant’s decedent was guilty of contributory negligence. The answers affecting such question show in substance that appellant’s decedent was a widow, sixty-six years of age, blind in the left eye; that at the time in question, and for ten years previous thereto, she lived on the south side of Water Street, west of the railroad and about ninety feet from the crossing; that at the time in question she was going to her daughter’s who lived on the opposite side of the railroad and about 300 feet from the home of the decedent; that when she started to go from her home across to the home of her daughter she had a wqolen scarf tied over her head and under her chin; that the injury happened at the intersection of the railroad tracks and Water Street on December 15, 1908, at about 6:30 p. m.; that the headlight on the locomotive was burning at the time it approached and passed over Water Street crossing; that appellee’s train when it passed over the crossing in question was running from forty to fifty miles per hour; that the engineer sounded a station signal when about 3,000 feet north of Water Street, a loud blast that could be and 'was heard at Water Street crossing; that no crossing signal was sounded or bell rung as the train approached the crossing; that the train No. 33 received orders at Blotcher to take the passing track at Charlestown in order to allow the Baltimore and Ohio Southwestern north bound train No. 20 to pass; that appellee’s_train took such siding and was passed by such north bound train; that decedent before she was struck, crossed the track on the south side of Water Street and went to a point on the east side of the track near the east rail and immediately thereafter proceeded to walk
In this narration of the substance of the answers to interrogatories, we have given to those throwing light on the question of the contributory negligence of decedent a construction as favorable to appellee as the answers will permit and more favorable than appellant is willing to concede. Indeed, it is contended by appellant that certain of the questions and answers are conflicting and inconsistent and therefore antagonize each other and should be disregarded. The interrogatories which appellant thus criticises are as follows: “2. Where was the said “Lydia Stierheim, and where was she going at the time she received her said in
The answers show that if appellant’s decedent had looked at the most favorable place for looking, viz., when within a space three feet east of the east rail of the track and twelve feet west of the west rail thereof, she could have seen the locomotive for a distance of 800 feet at most. The train was then approaching her at the rate of forty to fifty miles an hour, and if she had seen it when it first came into view she would have had but'twelve to fourteen seconds to get out of its way. Taking into consideration decedent’s age, the time and place where she was injured, and all the
As a general rule an answer of “No evidence” to an interrogatory submitted to a jury is a finding against the party having the burden as to' the proposition stated in such interrogatory. William Laurie Co. v. McCullough (1910), 174 Ind. 477, 481, 90 N. E. 1014, 92 N. E. 337, Ann. Cas. 1913 A 49, and cases cited. Assuming, without deciding, that such interrogatories were proper, it will be observed that by them the jury was not asked the direct question as to whether decedent’s children had suffered any pecuniary loss by her death, but such interrogatories enumerated other facts, or elements, which may have been proper to consider in determining the question of pecuniary loss, but of which there may have been no evidence. It follows that such answers do not necessarily mean that there was no evidence that decedent’s children suffered no pecuniary loss on account of her death1. The general verdict found that they did suffer such loss, and the answers to interrogatories are not necessarily in conflict therewith. It follows from what we have said that the trial court erred in sustaining appellee’s motion for judgment on the answers to interrogatories and that on account of such error the judgment below must be reversed; but, while such answers might have been reconciled with the general verdict by evidence admissible under the issues, they are of such a character as to indicate that the ends of justice will be better served by this court ordering the court below to sustain the motion for new trial rather than by ordering a judgment on the general verdict. The judgment below is therefore reversed with, instructions to the trial court to grant appellant’s motion for new trial and for any other proceedings not inconsistent -with this opinion.
Note. — -Reported in 108 N. E. 886. As to duty of traveler on highway to use his senses of seeing, hearing, etc., to avoid dangers at crossings, see 90 Am. Dec. 780. As to measure of damages recov