34 Ind. App. 377 | Ind. Ct. App. | 1905
Appellee’s decedent was killed at a grade crossing by coming in contact with a moving train on appellant’s railroad, and "this action was prosecuted to a successful termination in the court below to recover for damages resulting therefrom. The complaint was in one paragraph, to which an answer in general denial was filed. The cause was tried by jury, resulting in a general verdict assessing damages at $250, and with the general verdict the jury found specially by answering interrogatories submitted to them.
• Appellant moved, for a judgment on the answers to interrogatories notwithstanding the general verdict, which motion was overruled, and the overruling of that motion is the only error assigned. The facts stated in the complaint are sufficient to. charge appellant with actionable negligence, and by the general verdict the jury determined that question against it.
By its general verdict, the jury found that appellant had not proved contributory negligence:, and reached the conclusion that the decedent was free from fault. It was only upon this theory that the general verdict could be based. Hence by the general verdict we find the two vital issues in the case resolved against appellant: (a) That appellant was guilty of the negligence charged, and (b) that the decedent was free from fault. This finding must stand unless the answers to interrogatories are in irreconcilable conflict with one or both of the issues thus determined by the general verdict.
The question presented by overruling the motion for judgment on the answers to interrogatories is not a difficult one, as will appear by the facts exhibited by the answers to interrogatories. The material facts disclosed by the answers may be fairly and briefly stated as follows: At the time of her death decedent was fifty-five.years old, was in good health, and possessed good hearing and eyesight. She had for nine years lived near the Fredericksburg and Corydon road, which wras a public highway, about a mile south of the railway crossing where she met her death, and during all these nine years she had passed over the crossing once or twice a week, and was familiar with it and its surroundings. The public highway referred to runs north and south, and intersects with appellant’s main track and side-track, which run east and west at right angles. The crossing formed by the intersection of the highway and the railroad is in the small village of Ramsey, and such village contains only seventeen dwellings. There was no other railroad passing through Ramsey, and there was no other locomotive than that with which the decedent collided at or near that point,
By the answers to interrogatories the question of appellant’s negligence is eliminated so far as that question was determined by the general verdict, for there are no facts found that are irreconcilable with the general verdict as affecting appellant’s negligence as charged. We need, therefore, give no further heed to that issue, As to the other
As a correlative of the propostion that the traveler must look and listen, it results that the law will assume that he
Judgment reversed, and the trial court is directed to- sustain appellant’s motion for judgment on the answers to interrogatories.