Indiana, Bloomington And Western Railway Company v. Hammock

Decision Date29 December 1887
Docket Number12,931
Citation14 N.E. 737,113 Ind. 1
PartiesThe Indiana, Bloomington and Western Railway Company v. Hammock
CourtIndiana Supreme Court

From the Madison Circuit Court.

Judgment reversed, with costs.

C. W Fairbanks, O. Gresham, J. A. New, J. W. Jones, C. L. Henry and H. C. Ryan, for appellant.

C. S Hernly and S. H. Brown, for appellee.

OPINION

Mitchell, C. J.

Oliver Hammock and his son-in-law, David Bolen, while going north over a public highway, standing in an open two-horse wagon came in collision with a west-bound freight train at the highway crossing of the appellant company's line. Both were thrown from the wagon; Bolen was killed, and the appellee sustained serious bodily injury. This occurred between 9 and 10 o'clock a. m. of September 15th, 1884.

In an action to recover damages for the alleged negligence of the railway company, in failing to give the signals required by law, and for running its train at an alleged immoderate rate of speed, the plaintiff had a verdict and judgment for eight hundred dollars.

So far as appears from the evidence in the record, there does not seem to have been any delinquency imputable to the railway company, unless it was the failure of those in charge of its train to give the signals required by statute upon approaching the highway crossing. Upon that subject the witnesses are in irreconcilable conflict. All those connected with the running of the train, and two or three others wholly disinterested, testify affirmatively and positively that the whistle was sounded at the required distance from the crossing, while others testify with equal assurance that it was not sounded until it was too late to avoid the collision which followed immediately.

Fully recognizing the rule, applicable to the issue involved, that affirmative evidence that an act was performed, or that a particular thing did occur, is entitled to more weight than merely negative evidence upon the same subject--Stitt v. Huidekoper, 17 Wall. 384 21 L.Ed. 644; Steves v. Oswego, etc., R. R. Co., 18 N.Y. 422; Wharton Neg., section 806--we are nevertheless of opinion that the finding of the jury in respect to the failure of the railway company to give the signals required, can not be said to be so far without support in the evidence as to justify a reversal under the rule which governs in this court. Conceding, therefore, that the railway company was derelict in its duty in the respect mentioned, it was necessary, before the plaintiff was entitled to recover, that it should have appeared that the injury complained of resulted from the neglect of the company, and not from any negligence of the plaintiff which materially contributed thereto. As was said, in effect, in Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31, 2 N.E. 138: If the plaintiff's negligence contributed to the accident, then the injury was not, in contemplation of law, caused by the defendant's negligence. There is no presumption that a person injured on a highway and railroad crossing, with which he was familiar, was himself free from negligence. Prima facie, the fault was his own, and it is, therefore, essential that the proof should show that the plaintiff was himself in the exercise of due care. Indiana, etc., R. W. Co. v. Greene, 106 Ind. 279 (55 Am. R. 736, 6 N.E. 603), and cases cited; Louisville, etc., R. R. Co. v. Orr, 84 Ind. 50; Toledo, etc., R. W. Co. v. Brannagan, 75 Ind. 490; City of Warsaw v. Dunlap, 112...

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1 cases
  • Ind. v. Hammock
    • United States
    • Indiana Supreme Court
    • December 29, 1887
    ... ... & W. Ry. Co.v.Hammock.Supreme Court of Indiana.December 29, 1887 ... Appeal from circuit court, ... Action by Oliver Hammock against the Indiana, Bloomington & Western Railway Company, to recover damages for injuries ... ...

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