Cones v. Cincinnati, I., St. L.&C. Ry. Co.

• Decision Date: 14 April 1888
• Parties: Cones v. Cincinnati, I., St. L. & C. Ry. Co.
• Court: Indiana Supreme Court

114 Ind. 328

16 N.E. 638

Cones

v.Cincinnati, I., St. L. & C. Ry. Co.

Supreme Court of Indiana.

April 14, 1888.

Appeal from circuit court, Boone county; Thomas J. Terhune, Judge.

P. H. Dutch and J. Claybaugh, for appellant. Baker, Hord & Hendricks, C. S. Wesner, and R. W. Harrison, for appellee.

Mitchell, C. J.

Complaint in two paragraphs, by George W. Cones, administrator of the estate of Tilghman A. H. Cones, against the above-named railway company, charging that the latter had wrongfully caused the death of the plaintiff's intestate by driving one of its engines and trains, at an excessive rate of speed, over a public highway crossing, without giving the signals required by law; thereby causing the engine and train, so driven, to collide with the buggy in which the intestate was riding. At the trial the jury returned a general verdict in favor of the plaintiff, assessing his damages at $2,000. With their general verdict the jury also returned answers to 60 special interrogatories, and upon the answers so returned the court rendered judgment in favor of the defendant below, notwithstanding the general verdict. The propriety of this ruling is the only question involved in this appeal. Without setting out the interrogatories and answers in detail, we give the following summary of facts which they establish: The intestate was a physician, practicing his profession in Thorntown and vicinity, being a resident of the town. The collision which resulted in his death occurred at about 5 minutes past 5 o'clock on the evening of November 23, 1882. The train with which he came in collision was a regular passenger train, running substantially on its schedule time, at a rate of about 25 miles an hour, which the jury find was a proper rate of speed under the circumstances. It was dark at the time, and snowing, and the wind was blowing. The railroad track, in the direction from which the train approached, was substantially straight, as was the highway over which the intestate was passing. The head-light on the engine was burning brightly, and there was no obstruction to prevent a traveler approaching the track along the high way from seeing the coming engine. The jury answer ambiguously concerning the sounding of the whistle, but they find that the bell upon the engine was not rung continuously for more than 80 rods before it reached the point of collision. From the thirty-third to the thirty-ninth, inclusive, the interrogatories and answers are as follows: “33. Could Dr. T. A. H. Cones, as he approached the crossing of defendant's railroad where he lost his life, by the vigilant use of his sense of sight, have avoided the injury complained of? Yes. 34. Could Dr. T. A. H. Cones, as he approached the crossing of defendant's railroad where he lost his life, by a vigilant use of his sense of hearing, have avoided the injury complained of? No. 35. Could Dr. T. A. H. Cones, as he approached the crossing of defendant'srailroad where he lost his life, by a vigilant use of his sense of hearing have heard the noise made by the running of the train, and thereby have avoided the injury complained of? Yes. 36. Was not Dr. T. A. H. Cones familiar with the railroad crossing where he lost his life, and the surroundings of that crossing at the time of the accident, and for five months immediately prior thereto, by reason of having...