Ind. v. Wheeler

• Decision Date: 19 June 1888
• Parties: Indiana, B. & W. Ry. Co. v. Wheeler.
• Court: Indiana Supreme Court

115 Ind. 253

17 N.E. 563

Indiana, B. & W. Ry. Co.

v.Wheeler.

Supreme Court of Indiana.

June 19, 1888.

Appeal from circuit court, Parke county; Joshua Jump, Judge.

Action by Samuel Wheeler against the Indiana, Bloomington & Western Railway Company for the killing of his son. Judgment was for plaintiff, and defendant appeals.

Kennedy & Kennedy and C. W. Fairbanks, for appellant. V. Carter and Puett & Hadley, for appellee.

Mitchell, J.

This was a suit by Samuel Wheeler against the Indiana, Bloomington & Western Railway Company, the gravamen of the complaint being that the defendant company wrongfully caused the death of the plaintiff's minor son, Walter N. Wheeler, on the 9th day of September, 1884, by “willfully, knowingly, and with gross negligence” running one of its engines and trains upon him at a highway crossing. The pleading, which is in one paragraph, seems to have been framed with the purpose that it should be good, either as a complaint for willfully and intentionally causing the death of the plaintiff's son, or for wrongfully causing his death by the negligent conduct of the defendant's agents and servants. In some respects the complaint proceeds upon both theories. For the appellant it is insisted that it fails to state facts sufficient to constitute a cause of action on either theory. See Gregory v. Railroad Co., 112 Ind. 385, 14 N. E. Rep. 228. Without pausing to consider the complaint, it is quite certain, assuming it to have been sufficient in both its features, that the evidence fails entirely to make a case against the appellant in either. There is no substantial disagreement between the witnesses in respect to the material facts. The testimony shows that on the 9th day of September, 1884, the plaintiff's son, 20 years of age, was engaged, as he had been for several days prior thereto, in hauling wheat from the farm where it was being threshed to the elevator at a station on the appellant's line. The boy was well acquainted with the crossing, having been raised in the vicinity, and having passed over it a great many times. Trains approaching on the rail way track could be seen without difficulty for a distance of from 900 to 1,000 feet from the highway over which the young man was proceeding, on a loaded wagon, up a rising grade towards the crossing of the railway track. A passenger train, running at the usual rate of about 30 miles an hour, approached the highway. The highway crossing signals were given as the statute requires. The whistle was next sounded for the station. Seeing a team approaching the railway, apparently without a driver, the engine-driver gave the usual danger signals. Observing that the team kept on its way regardless of the signals, which were continued, the engineer, when several feet from the crossing, and as soon as he apprehended that the team might not be halted, made every effort in his power to stop his engine so as to avoid a collision. A lady near by the highway, seeing the boy lying upon the top of the loaded wagon, asleep, as she supposed, tried to arouse him by making outcry. A moment before the engine came into collision with the wagon, the boy raised up. The engine came upon the wagon with such force as to shatter it to pieces, notwithstanding the efforts of the engine-driver to stop his engine. The boy only survived the collision about two hours, during all of which time he was apparently unconscious. The evidence tended to show that the young man had...