34 Ind. App. 476 | Ind. Ct. App. | 1905
Appellant refused to plead further when the court sustained a demurrer to his complaint, and appellee was given judgment for costs.
In the city of Ft. Wayne, appellee has two lines of track running east and west across Ewing street. On October 24, 1901, appellant, nearly seventy-five, years old, stooped in form, walking with the aid of a cane, impaired in sight and hearing, and decrepit and infirm in physical strength, was walking south on Ewing street, and, as he was about to cross appellee’s tracks, a long freight-train, coming in from the west on the south track, impeded his progress in going south. As the train approached, and when passing over the crossing, the whistle was loudly blowing, the escape valves on the engine were emitting steam, the bell on the engine ringing continuously, and the wheels of the cars rattling over the rails. Before and at the time of the approach of the train, and the passing of the engine and cars over the crossing, appellant was standing on the sidewalk “on the west side of said Ewing street, near the north rail of the
The second paragraph avers, in addition, that appellant was in plain vieAV of the servants in charge of the engine and cars, and could have been seen by them, had they been on the lookout, and that the engine and cars, as they moved backward across the street, could have been stopped Avithin the space of one foot.
The demurrer was properly sustained to each paragraph.
Judgment affirmed.