22 Ind. App. 163 | Ind. Ct. App. | 1899
— The appellee, Anna E. Jones, brought her. action against the appellant as receiver of the Toledo, St. Louis and Kansas City Eailroad Company, for damages for a personal injury suffered in passing over the track of the railroad at a street crossing in the city of Kokomo, through the negligence of the servants of the defendant. There was a general verdict for the appellee, her damages being assessed at $1,000.
It is urged on behalf of the appellant that the evidence failed to show sufficiently that the appellee was free from contributory negligence. The casualty occurred between 10 and 11 o’clock in the forenoon, on the 11th of July, 1895, the weather being clear. The course of the railroad was east and west, and a freight train approached from the east. The appellee was riding in a two-seated carriage southward on Smith street, which crossed the railroad at right angles. The carriage was drawn by one horse, driven by the appellee’s husband, who was seated on the right side of the front seat. The appellee was seated on the left side of the same seat, with a child seated between her and her husband. The other seat was occupied by two other ladies and another child. The carriage was one of a number in a funeral procession, the hearse containing the corpse being at the front of the procession, and the Carriage in which the appellee was seated being the second carriage from the hearse. On the east side of Smith street and near it, and also near the railroad track, were some obstructions consisting of a small house and a shed for stone cutting and certain stock pens, with some chutes for loading animals, and also a number of box freight cars from twelve to fourteen feet high on two side-tracks on the north side of the main track on which the train in ques
There was much evidence tending to show that in passing over a railroad crossing about 2,100 feet east of Smith street, the train had slowed up (as the engineer stated, to the rate of between five and six miles an hour) to let one of the employes get off the train and adjust a target and get back on the train. The evidence showed that there was a down grade toward the Smith street crossing from a point some distance eastward. The train did not stop before passing Smith street. The evidence as to the rate of speed of the train at the Smith street crossing varied greatly, some evidence indicating a speed of fifteen to twenty miles an hour. It is contended that the evidence did not show that the appellee listened for a train as she approached the crossing, and a large number of cases are cited, and many quotations therefrom are set out, in appellant’s brief, for the purpose of illustrating the rule of law relating to looking and listening when about to cross a railway. To show herself not chargeable with contributory negligence, it was necessary for the appellee to establish to the satisfaction of the jury that there was no want of ordinary care, under the circumstances, by way of act or omission on her part, which, by its cooperation with the defendant’s negligence, proximately caused her injury. Concrete rules of law declaring particular acts or omissions to be contributory negligence are subject to this general proposition, and are intended to be applied for the solution of the general question in the particular case. It is sufficient if it appear that the plaintiff observed and exercised the care and diligence which was reasonably to be expected of an ordinarily prudent person under the particular circum
In the ease before us, a passing train could have been seen for a space west of the depot from a point about 200 feet north of the crossing to a point about 100 feet north of the crossing. That there was no train there to be seen was shown by the evidence, as we have recited it. That the appellee was not wholly devoid of care or diligence was indicated by her watching for a train while passing over this space. When and after she arrived at a point about 100 feet north of the crossing, from which point to the crossing a train could not be seen, and looking would be of no avail, that is, after she got down behind the box cars, she “paid attention.” She could not then attend with her eyes or otherwise than by listening, and by observing the conduct of others. W"hen the funeral director, looking up the track, saw the train, it was still east of the depot and was running comparatively slowly. When the funeral director had gone forward for the manifest purpose of'such an act, in the presence of the occupants of the vehicles in the procession, it was not
There was here no mere reliance on negative indications of safety produced by negligent conduct of the appellant’s servants calculated to mislead, but there was an aifimative assurance of safety given by the appellant with intent to create confidence and induce action, and wdiich did produce the confidence and procure the action intended, there being no manifest reason to persuade or warn to the contrary course.
If, in view of such a positive invitation, it may not be said, indeed, that, as a matter of law, the appellee was justified in assuming that there was no train approaching so near and with such speed as to be dangerous, and in acting upon such belief, at least it may be said that the jury might properly find that there was no contributory negligence. It cannot be said properly that a failure to use her natural senses with ordinary diligence so certainly contributed proximately to the appellee’s injury that it was not within the province of the jury to find her to be without fault. Even where a traveler only found the gate open and received no warning from the flagman, it was held that the traveler might act on such assurance of safety without being chargeable with negligence. Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 310. See, also, Chicago, etc., R. Co. v. Boggs, 101 Ind. 522; Terre Haute, etc., R. Co. v. Brunker, 128 Ind. 542; Cleveland, etc., R. Co. v. Harrington, 131 Ind. 426; Cleveland, etc., R. Co. v. Keely, 138 Ind. 600; Pittsburgh, etc., R. Co. v. Burton, 139 Ind. 357; Chicago, etc., R. Co. v. Hedges, 105 Ind. 398, and cases cited; Beach Cont. Neg. (3rd ed.) sections 67, 68, 190, and notes.
In Chicago, etc., R. Co. v. Hedges, 118 Ind. 5, 12, it is said, that one may be excused from looking when a flagman
In Cadwallader v. Louisville, etc., R. Co., 128 Ind. 518, 521, it was said: “Had the flagman done anything to induce the appellant to attempt a crossing at the time she was hurt, or anything to throw her off her guard, then the question of her negligence would have been a question for the jury.” See, also, Callaghan v. Delaware, etc., R. Co., 5 N. Y. Supp. 285; Kane v. New York, etc., R. Co., 9 N. Y. Supp. 879.
•The case might be illustrated by numerous decisions holding the plaintiff not chargeable with contributory negligence where he obeyed the directions or proceeded in reliance upon the assurances of the defendant, or of the defendant’s servants acting within the scope of their duty, upon whom the plaintiff might properly rely, where the danger was not obvious to the plaintiff; as where a passenger obeys the directions of a conductor or other trainman, or railway agent acting within the scope of his. employment upon a train, or at a railway station. See Cincinnati, etc., R. Co. v. Carper, 112 Ind. 26; New York, etc., R. Co. v. Doane, 115 Ind. 435; Warren v. Fitchburg R. Co., 8 Allen 227.
Counsel have criticised the action of the court in relation to the instructions to the jury. Considering the instructions as a whole, we find no available error.
Some question is made as to the admission of evidence. John Osborn, a witness testifying for the appellee, was asked concerning her and on her behalf: “What complaint did you hear her make, if any, of suffering from a pain in her left side?” The appellant’s objection to this question having been overruled, the witness answered: “She complained of her left side hurting her a great deal.” There was no motion
It is an often stated rule that only such objections to questions asked in the examination of a witness as were presented to the trial court can be urged on appeal.
In Board, etc., v. Leggett, 115 Ind. 544, it is said: “An injured person may show in evidence declarations connected with existing suffering and expression of it, but he may not give an account of the manner in which he received his injuries, nor recount what is past.”
In Chicago, etc., R. Co. v. Spilker, 134 Ind. 380, it is said: “It would not be proper to give in evidence a conversation with the injured party in which she related her past suffering or injury, by way of narrative, but it was proper for the witness to relate what appellee had said as to her condition, particularly of concealed or internal suffering, as it existed at the time the statement or exclamations of suffering were made.” See, also, Town of Elkhart v. Ritter, 66 Ind. 136; Carthage Turnpike Co. v. Andrews, 102 Ind. 138; Cleveland, etc., R. Co. v. Newell, 104 Ind. 264; Sturgeon v. Sturgeon, 4 Ind. App. 232; City of Alexandria v. Young, 20 Ind. App. 672.
The question to which the appellant objected, by its form,
There was evidence tending to prove an injury to the appellee’s left kidney caused upon the occasion in question. A question propounded to a witness as a medical expert, relating to the continuing or permanent effect of such injured condition of the kidney was objected to. The objection was such that the court would understand it as being based upon the form of the allegation of damages in the complaint,' — ■ not an objection to a proposal of evidence of the particular physical condition because it was an attempt to prove remote or speculative damages, but an objection that it was offered to prove damages not specially alleged in laying the damages in the complaint. In argument, however, the evidence is objected to on the ground of its remoteness. The trial court should have had án opportunity to pass upon the question before submitting it to us. We find no available error. Judgment affirmed.