73 Ind. App. 309 | Ind. Ct. App. | 1920
This is an action by appellee against appellant to recover damages on account of the death of Joseph Castleman. The complaint is in a single paragraph and alleges in substance, among other things, that while said Castleman was riding in a one-horse, covered buggy, and attempting to pass over a crossing made by the intersection of appellant’s railroad tracks with a public street in the town of Knox, appellant negligently backed an engine and tender over said crossing at a high and dangerous rate of speed, without keeping any outlook, and without ringing any bell, or sounding any whistle, or giving any other warning of the approach of said engine and tender, 'thereby striking and killing said Castleman. Appellant answered the complaint by a general denial. The cause was submitted to a jury for trial, resulting in a verdict in favor of appellee for $4,800. The jury also returned their answers to certain interrogatories submitted by the court. Appellant’s motion for judgment on the answers to the interrogatories notwithstanding the general verdict was overruled. Appellant then filed a motion for a new trial, which was overruled after appellee had entered a remittitur of $1,500. The action of the court in overruling said motions are the only errors assigned on appeal.
Appellant contends that the court erred in overruling its motion for a new trial. It bases this contention in
Appellant has presented other reasons for a new trial, but, as they relate to alleged errors that will probably not occur on another trial, we do not pass upon the questions raised thereby. For the reason stated, the judgment is reversed, with instructions to sustain appellant’s motion for a new trial, and further proceedings consistent with this opinion.