Action by appellee to' recover damages for injury to an auto truck, struck by appellant’s train at a street crossing in the town of Remington, Indiana.
There were three paragraphs of complaint. The first avers in substance that on December 20, 1920, appellee was the owner of a Ford truck, and was driving and operating said truck over and along Ohio street, in the town of Remington, Indiana, traveling in a southerly direction, which street crossed the tracks of appellant a few rods west of its depot in said town; that appellee approached said crossing from the north, driving his said truck at a moderate rate of speed, and looked and listened for approaching trains, but was unable to see or hear any engine or train approaching from the west, because of the obstruction of his view by box cars, standing on the side track to the west of said crossing, which appellant had negligently permitted to remain there. And that on account of adjacent buildings which intervened, and on account of said box cars appellee’s view was obstructed and the sound of the approaching train from the west was entirely shut off; that just as appellee was crossing over said tracks and while he was on the said tracks, appellant negligently and carelessly ran a locomotive, with several cars attached thereto, over the said crossing at the rate of twenty-five miles per hour, without sounding the whistle or ringing the bell on said locomotive in the manner and within the distance from said crossing as required by law; that the steam was shut off said locomotive before arriving at
The second paragraph of complaint was the same as the first, except that in the first paragraph it averred that the engine was in charge of a fireman in the absence of the engineer, while in the second it is charged that the engine was in charge of the engineer in the absence of the fireman.
Appellant filed a separate and several demurrer for want of facts to the first and second paragraphs of complaint. Later a third paragraph of complaint was filed, with substantially the same averments as the first and second, and in addition thereto that the truck was pushed and shoved 120 feet to the east and crushed against a switch post. To this paragraph appellant filed a demurrer for want of facts. Each of the demurrers was by the court overruled, and these rulings are assigned as error.
It is contended by appellant that neither the first nor second paragraph of complaint shows that appellee was intending to cross appellant’s railroad track on a street or highway crossing, and that therefore the duty owing by appellant to the traveler on a highway intending to use such highway across the railroad track is not shown to have existed, and that therefore no duty was violated. Appellant contends that the statutory duty to blow the
Instructions Nos. 7 and 8, on the same subject, as instruction No. 9 omit the element of actual knowledge, are each confusing and misleading, and should not have been given. Other alleged errors are presented, but we do not deem it necessary to consider them.
For the errors in instructions as above set out, the judgment is reversed, with instructions to grant a new trial.