27 N.E. 339 (Ind. 1891), 14,755, Miller v. The Louisville, New Albany And Chicago Railway Co.

Docket Nº:14,755
Citation:27 N.E. 339, 128 Ind. 97
Opinion Judge:Elliott, J.
Party Name:Miller, Administrator, v. The Louisville, New Albany and Chicago Railway Company
Attorney:J. R. Coffroth, T. A. Stuart, F. Gaylord and J. F. McHugh, for appellant. W. S. Kinnan, E. C. Field and C. C. Matson, for appellee.
Case Date:April 21, 1891
Court:Supreme Court of Indiana
 
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Page 339

27 N.E. 339 (Ind. 1891)

128 Ind. 97

Miller, Administrator,

v.

The Louisville, New Albany and Chicago Railway Company

No. 14,755

Supreme Court of Indiana

April 21, 1891

From the Carroll Circuit Court.

Judgment affirmed.

J. R. Coffroth, T. A. Stuart, F. Gaylord and J. F. McHugh, for appellant.

W. S. Kinnan, E. C. Field and C. C. Matson, for appellee.

OPINION

Elliott, J.

The facts, as they appear in the special verdict, [128 Ind. 98] are, in substance, these: The track of the appellee crosses a public highway not far from the city of Lafayette. The railroad runs from north to south, and the highway from east to west, but neither runs on a direct line. The track approaches the crossing from the west on a descending grade of about sixty feet to the mile, and the grade of the highway from the south descends to the crossing at about two hundred and fifty feet per mile. On the south side of the railroad, and extending from a point one-half mile west of the crossing to a distance of two hundred and seventy feet of the crossing, there is a hill thirty feet high. A side-track extends along the main track from a point seventeen rods west of the crossing eastward, and beyond the highway. On the 26th day of June, 1886, there were five freight cars, each thirty feet in length, standing on the side-track; one of these cars was a box-car, ten feet high, and the others were platform cars. Beginning at a point in the public highway fifty feet distant in a southeasterly direction from the railroad, was an open space where the track was plainly visible to one travelling on the highway for more than one-fourth of a mile. The crossing was a dangerous one, and the appellant's intestate and her husband passed over it as often as once in every two weeks, and knew that the crossing was a dangerous one. On the 26th day of June, 1886, the intestate was riding with her husband along the highway, and at the time they reached a point within one hundred and fifty feet of the crossing a train was approaching from the west, and was in plain view all the time for a distance westward on the track for more than one-fourth of a mile, but the view of the railroad track was partially obstructed by the freight cars on the side-track. The intestate and her husband were riding in an ordinary farm-wagon, drawn by two horses; the husband drove and managed the team. The whistle was not sounded until the train was within seventy rods of the crossing, nor was the bell rung until after the whistle was sounded. The engineer saw the intestate and her husband when within two hundred...

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