185 Ind. 495 | Ind. | 1916
— This was an action by appellee for damages for injuries to his traction engine and clover huller that were struck by appellant’s passenger train at a public highway crossing. Appellant filed a cross-complaint against appellee for injury to its train by the same accident. Appellant’s demurrer to the complaint was overruled. There was a trial by jury, with verdict and judgment for appellee on the complaint and cross-complaint. Error is assigned here on the ruling on demurrer, and on the overruling of appellant’s motion for a new trial.
The complaint alleges that a public highway, known as the Taylor Creek gravel road, runs north and south in Grant county; that appellant’s railroad at said place runs in a northwesterly and southeasterly direction and crosses the highway at
“Plaintiff says further that the engine of said train was in charge of an engineer and fireman employed by defendant; that the track from the point where said train first appeared to plaintiff’s view to said crossing was straight, almost level, and the defendant’s view to said crossing was unobstructed and that plaintiff was standing in front of said train as it approached at the time he flagged it and tried to cause said train to come to a stop before reaching said crossing. But plaintiff says that the said fireman and engineer on said train negligently, recklessly and carelessly disregarded,
“That the defendant had two or three minutes in which to observe plaintiff’s property in said position but paid no heed for the safety of said property and carelessly, negligently and recklessly ran into the same as aforesaid. That the headlight on defendant’s engine at said time was lighted and the position and condition of plaintiff’s said property was visible and apparent to the defendant and its servants in time to stop said train before reaching said crossing and that defendant, by the exercise of ordinary care, could have stopped said train
“That the plaintiff was at all times heretofore alleged free from negligence and that the said injuries and damages to plaintiff’s property occurred without any fault or negligence upon the part of the plaintiff.
“Wherefore, plaintiff prays judgment against the defendant for damages in the sum of twenty-five hundred dollars and for all other proper relief.”
Error is predicated on the court’s refusal to give instructions numbered 1, 13, 16, and 18, requested by appellant. Without setting them out,' it is sufficient to say that when each of them is considered with reference to instructions given there was no reversible, error in the court’s action. It is contended that each of a number of instructions given by the court was erroneous. We have examined them and are of the opinion that there was no harmful error. Judgment affirmed.
Note. — Reported in 113 N. E. 7. Duty of a railroad company as to persons or property on or near track, 20 Am. St. 452. Origin, function and mode of operation of the doctrine of last clear chance, note, 55 L. R. A. 418. See under (2-4) 33 Cye 1047.