158 Ind. 494 | Ind. | 1902
This action was brought by appellant in August, 1899, to recover damages for the loss of services of his son, a minor, and for injuries to his horse, buggy, and harness, on the ground that the same were caused by the negligence of the appellee. The jury returned a general verdict in favor of appellant, and also answers to interrogatories submitted by the court at the request of appellee, under §555 Burns 1901, §546 Horner 1901, Acts 1897, p. 128. Appellee’s motion for a judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict, was sustained and judgment rendered against appellant. This action of the court is assigned for error.
The general verdict necessarily determined each and every proposition essential to appellant’s right of recovery in favor of appellant, and every reasonable presumption will be indulged in its favor, while nothing will be inferred or presumed in aid of the special findings of fact made in answer to the interrogatories. Chicago, etc., R. Co. v. Hedges, 118 Ind. 5, 8, and cases cited; Central, etc., Tel. Co. v. Fehring, 146 Ind. 189, 194. If, however, the facts found in answer to the interrogatories essential to appellant’s recovery are inconsistent and in irreconcilable conflict with the general verdict, the court did not err in sustaining appellee’s motion for a judgment in its favor on the answers to the interrogatories. §556 Burns 1901, §547 R. S. 1881,
As no wilful injury was charged, appellant was not entitled to recover if the deceased was guilty of contributory negligence. This action was commenced after the taking effect of §359a Burns 1901, §284a Horner 1901, which makes contributory negligence in such actions as this a defense provable under the general denial. Indianapolis St. R. Co. v. Robinson, 157 Ind. 414; Malott v. Hawkins, 159 Ind. —.
Appellee insists that the answers to the interrogatories show that the deceased was guilty of negligence which directly contributed to the injuries sued for. If this is true there is no error in the record. The jury found, in answer to the interrogatories, that appellant’s son was killed in a collision between one of appellee’s locomotive engines and a buggy in which said son was riding, about 2:50 a. m. on January 30,1899, at the crossing of appellee’s track and a public highway known as Main street in the town of Carmel, about two blocks north of appellee’s depot in said town. That said highway runs east and west, and appellee’s track runs north and south where it crosses said highway; that from said highway crossing appellee’s track runs due north for the distance of about half a mile. Said highway approaching said crossing was practically level, without any down grade, for a distance of seventy-five feet or more. As the train approached the crossing, the headlight on the locomotive engine was burning; the weather was cold, and it was “snowing and blowing.” At the time of the collision the deceased was riding alone in a top buggy drawn by one horse; the top was up, and the side curtains were on. The deceased was going west, and the locomotive which collided with said buggy was coming from the north, hauling one of appellee’s through passenger trains, and at the time of the collision was going at the rate of about thirty
It is settled law in this State that when a traveler approaches a point where a highway crosses a railroad track at grade, it is his duty to proceed with caution, and if he attempts to cross the track, either on foot or in a vehicle of any kind, he must assume that there is danger, and act with ordinary care upon that assumption. In attempting to cross he must listen for signals and noise of approaching trains, notice signals put up as warnings, and look out for approaching trains, if the surroundings are such as admit of that precaution. If he, by looking could have seen, or by
The special finding of facts made by the jury clearly show that the deceased could have seen the headlight of the approaching locomotive in time to have avoided said injuries if he had looked, and that he heard the noise of said south bound train, and knew it was approaching said crossing from the north when he was at Hiatt’s barn, about ten minutes before the collision, and could have heard the noise of said train at any time thereafter until the collision if he had listened. He had an unobstructed view of the track to the north, and he either did not look and listen, or if he looked and listened he did not heed what he saw and heard, but took upon himself the risk of attempting to cross in front of an approaching train. Cones v. Cincinnati, etc., R. Co., 114 Ind. 328, 330, and cases cited. Such conduct is, under the authorities cited, negligence per se. See cases cited supra.
It is not material, therefore, that there' is no finding that he did not look, for the result is the same as. if such finding had been made. As the deceased knew said train was approaching, it can not be claimed that the failure to ring the bell and sound the whistle misled him.
Apppellant insists that we must indulge the presumption that the finding that it was “snowing and blowing” shows that it was a blinding snow, and shut out the view of objects a few feet away. The jury, however, found that the
As the special finding of facts show that the deceased was guilty of contributory negligence which directly contributed to his injury, the court did not err in rendering judgment thereon in favor of appellee. §556 Burns 1901, §517 R. S. 1881, and Horner 1901.
Judgment affirmed.