191 Ind. 470 | Ind. | 1922
Appellee recovered a judgment against the appellant for negligently causing the death of his decedent, who, on May 31, 1916, was struck by a passenger train running on appellant’s double track railroad, at a street crossing in the town of Donaldson, while riding a motorcycle.
The undisputed evidence was that he was a minor, but lacked less than five months of being twenty-one years old. There was evidence tending to prove and from which the jury might have inferred that a freight train had just passed going east, when the deceased reached the crossing; that he approached the crossing from the east over a highway that came toward the railroad track at an acute angle of twenty or thirty degrees’ until it turned south toward the crossing when within forty or fifty feet from the track; that between
If no evidence tending to prove contributory negligence were introduced the jury could not find that the negligence of the injured person contributed to cause his injury, and the inaccuracy of statement in the opening clause of this instruction might then be harmless. But as applied to evidence presenting a direct issue of contributory negligence, and especially as given in connection with an assertion, which the jury would necessarily understand as applicable to the facts of the case on trial, that “the plaintiff need not affirmatively prove that his decedent exercised ordinary care for his own safety,” it was misleading and harmful. Except so far as the court held the instruction then under consideration to be harmless as applied to cases where “there is no evidence on the subject of contributory negligence,” the statement found in Cleveland, etc., R. Co. v. Wise (1917), 186 Ind. 316, 116 N. E. 299, purports to be based wholly upon the earlier case of Pittsburgh, etc., R. Co. v. Reed (1905), 36 Ind. App. 67, 75 N. E. 50, which had been expressly overruled by both the Supreme and Appellate Courts several years before the Wise case was decided. Grand Trunk, etc., R. Co. v. Reynolds, supra; Harmon v. Foran, supra.
The complaint alleged that appellee’s decedent was a minor and that “more than a year before his death he was emancipated” by his parents. Appellant answered by a denial. The undisputed evidence was that at the time of his death he was twenty years, seven months and eight days old. Appellee testified that he was the father of the deceased, and testified to certain facts tending to show that the deceased had been emancipated two years before. But there was also evidence that in the intervening years he had only worked away from home for four persons, and that he worked for one of them two months, for another two weeks, and for each of the others three or four weeks, which would be a
In addition to the evidence above set out, including what tended to prove that appellee’s decedent was less than twenty-one years old but had been emancipated, there was evidence that he was the oldest of a family of nine children, ranging in ages down to the baby, two
This was error. There is no such presumption. Whether the deceased would probably have continued throughout his life to contribute to the support of his parents and brothers and sisters, was a question for the jury, in fixing the amount of damages which the next of kin sustained by his death. American M. C. Co. v. Robbins (1913), 181 Ind. 417, 422, 103 N. E. 641.
The judgment is reversed with directions to sustain appellant’s motion for a new trial.