128 Ind. 97 | Ind. | 1891
The facts, as they appear in the special ver
It is quite clear that the husband of the appellant’s intestate was guilty of contributory negligence. It is evident from the facts stated in the special verdict that the slightest care on his part would have enabled him to see and avoid the approaching train. But the fact that the driver of a wagon and team which collides with a railroad train is negligent does not necessarily preclude a recovery by one riding in the wagon with such negligent driver. The doctrine of Thorogood v. Bryan, 8 C. B. 115, has never been sanctioned by this court. Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186, and cases cited ; Town of Knightstown v. Musgrove, 116 Ind. 121; City of Michigan City v. Boecking, 122 Ind. 39. The doctrine has, indeed, been overthrown in England and is repudiated by almost all of the courts of this country. See authorities cited in notes, pp. 630, 632, Elliott Roads and Streets. Rejecting, as we do, the doctrine of imputed negligence, we are, nevertheless, required to hold that there can be no recovery in this action. We are led to this conclusion by the fact that the intestate was not shown to be free from contributory negligence. It has long been the settled law of this State that a plaintiff can not recover in such a case as this unless it affirmatively appears that his own negligence did not proximately contribute to his injury. Hathaway v.
The fact that there was no contributory negligence may undoubtedly be inferred from circumstances, but to authorize such an inference there must be evidence of circumstances from which the inference can be legitimately drawn. There are no circumstances in this instance authorizing such an inference. The intestate approached a crossing known to her to be dangerous, and approached it when a train was in full view; she took no precautions to warn her husband or to avert the threatened danger, although slight care might have avoided it. While the husband’s negligence is not to be imputed to her, she was, nevertheless, under a duty to herself to exercise ordinary care. The rule we adopt is laid down in the well-reasoned case of Brickell v. New York, etc., R. R. Co., 120 N. Y. 290.
In the case of Hoag v. New York Central R. R. Co., 111 N. Y. 199, it was said, in speaking of a case where the wife was seated in a wagon drawn by a team which her husband was driving, that, “If they did not see it (the train), or, at least, the deceased did not see it, she was negligent, for she was bound to look and listen, and the facts show that if she had looked, she could have seen, and would have seen, the approaching train. She had no right, because her husband was driving, to omit some reasonable and prudent care to see for herself that the crossing was safe.” The statement was approved in the later case. This statement applies with great force to the case before us, for here the wagon was stopped, the engineer had reason to believe the husband did not intend to attempt to cross in front of the train, there was no obstruction to the view, and the wife knew that the
We do not undertake to lay down a general rule which shall apply to all oases of this class; we simply adjudge that,
The other questions in the case arise on the motion denying á new trial.
There ,was no error in permitting a witness to testify that a photograph introduced in evidence was a correct representation of the crossing and its surroundings. Keyes v. State, 122 Ind. 527.
A witness for the appellee was permitted to state what was said by him, at the time the whistle was sounded, to a lady passenger on the train with him. We need not and do not decide whether this evidence was competent for the purpose of enabling the witness to fix the time when he heard the whistle, for, granting that it was incompetent, still there can be no reversal of the judgment, inasmuch as the jury found for the appellant upon the question to which the evidence was directed, and hence it is obvious that if there was error it was harmless.
Appellant asks a reversal upon the ground that the appellee knowingly permitted a juror to serve who was the husband of a niece of the wife of one of the appellee’s attorneys. The contention of appellant can not be sustained. Such a relationship of a juror to one of the counsel can not, under the long existing rule, be deemed cause for setting aside a verdict. Thompson and Merriam Juries, 181.
Judgment affirmed.