33 Ind. 335 (Ind. 1870), , Bellefontaine Railway Co. v. Hunter

Citation:33 Ind. 335
Opinion Judge:Ray, C. J.
Party Name:The Bellefontaine Railway Company v. Hunter, Administrator
Attorney:J. T. Dye and A. C. Harris, for appellant. J. Hanna, F. Knefler, and N. B. Taylor, for appellee.
Court:Supreme Court of Indiana
 
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Page 335

33 Ind. 335 (Ind. 1870)

The Bellefontaine Railway Company

v.

Hunter, Administrator

Supreme Court of Indiana

November, 1870

APPEAL from the Marion Common Pleas.

Reversed, with costs; remanded for a new trial.

J. T. Dye and A. C. Harris, for appellant.

J. Hanna, F. Knefler, and N. B. Taylor, for appellee.

OPINION

Page 336

Ray, C. J.

This was a complaint, in two paragraphs, against the appellant, charging in the first, that said corporation carelessly and negligently ran its locomotive and cars over one William M. Hunter, whereby he was instantly

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killed, without fault or negligence on his part. In the second paragraph it was alleged, in addition to the former averments, that the appellant did recklessly, wantonly, and with gross carelessness, run the cars against, upon, and over the said Hunter, while he was in the lawful act, without fault or negligence, of crossing over said defendant's road, along and upon a public highway, leading over and across said appellant's road; that said appellant did not ring the bell, or blow the whistle, or give any signal of approach, whereby said Hunter might have been warned and informed of the near and rapid approach of said train, and his life thereby saved.

The answer was in denial. Trial by jury, and finding for the appellee, for thirty-five hundred dollars; and with the general verdict certain interrogatories were submitted and answered, as follows: On behalf of the appellee it was asked,

"1. Was not William H. Hunter killed on the afternoon of August 30th, 1867, by being run against by a locomotive and train of cars of defendant, at the point where the county road, leading north and south, crosses the track of the defendant's railroad at Minnowa Station, and while he, said Hunter, was crossing said railroad track along said county road with a wagon and team of horses which he was driving at the time?" Ans. "Yes."

"2. Did defendant's agents, running and having charge of said train of cars, give any signal of the approach of said train to said crossing of said county road?" Ans. "No."

"3. Was not said train running at a great speed when it approached the point where said county road crosses the railroad track of the defendant?" Ans. "Yes."

"5. Was not the rate of speed at which said locomotive and train were running, at the time it was approaching said crossing, from forty to sixty miles an hour? If not, what was the rate of speed? Ans. "No. From thirty to forty miles an hour."

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"6. Was the rate of speed at which said locomotive and train were being run when approaching said crossing slackened before reaching the crossing?" Ans. "No."

"7. Was the bell or whistle of the engine of said train rung or blown before said Hunter was struck by the said train?" Ans. "No."

"8. Did not the sound of the whistle and that of the crash of the collision of the train and wagon in which said Hunter was occur at the same time?" Ans. "Yes."

"9. Was not said county road, crossing said railroad track of the defendant, much used for travel?" Ans. "Yes."

"11. Did not the death of William H. Hunter result from the unreasonable rate of speed with which said train of cars approached the crossing of the county road and the railroad track over which he was passing, and from the failure of the engineer of the train to keep the proper lookout ahead of the train, and his failure to seasonably give notice of the approach of the train to the crossing, by the signal of blowing the whistle and ringing the bell?" Ans. "Yes."

And the jury returned the following answers to the interrogatories propounded by the court at the instance of the appellant:

"1. Did not William Hunter know, when he left Lanesville, on the 30th of August, 1867, that the train of cars would be due at that place in a few minutes?" Ans. "Yes."

"2. Could not the noise of the approaching train be distinctly heard on the road leading from the gravel road to Minnowa crossing?" Ans. "Yes."

"3. Could not the approaching train have been plainly seen by a person on the highway at a point thirty feet south of the railroad track?" Ans. "Yes."

"4. Was not Hunter in the full possession of the senses of sight and hearing?" Ans. "Yes."

"5. Did not Hunter, after he was notified of the approach of the train by Freeman, and when he knew the train was

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due, and when he could have both seen and heard the train, take the risk of crossing in front of the train?" Ans. "No."

"6. Was the train going, before the collision, at a more rapid rate than thirty miles an hour, or forty-four feet per second?" Ans. "Yes."

"7. When Hunter was thirty feet from the middle of the railroad track, was the locomotive further than three hundred and fifty-two feet from the same point?" Ans. "Yes."

"8. Was it possible, in the exercise of ordinary prudence, to stop the train when going at the rate of thirty miles an hour, in the distance of three hundred and fifty-two feet?" Ans. "No."

"9. Was not Hunter's death caused in part by his own negligence and imprudence in attempting to cross the track in front of the approaching train?" Ans. "No."

And thereupon the appellant moved the court to render judgment for the defendant upon the special findings of the jury and their answers to the interrogatories propounded to them, notwithstanding the general verdict, because said answers and findings show,

1. That Hunter's negligence contributed to the injury that caused his death, and that he did not exercise ordinary diligence in crossing the railroad before and in full view and hearing of an approaching train, when he knew the train was approaching.

2. And the defendant was not guilty of such gross negligence as showed a willingness to inflict the injury or a disregard of consequences.

This motion was overruled by the court, and this action is assigned for error.

In case where the special findings of a jury are successfully used to control their general verdict, it is required that all the facts to authorize an adverse conclusion should appear by such special answers. Thus, although it appears that Hunter had notice of the nearness of the time when the train would be due when he was at Lanesville; that the noise of the approaching cars could be distinctly heard on

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the road leading from the gravel road to Minnowa crossing; that such train was visible to a person on the highway thirty feet south of the railroad crossing; and that Hunter had full possession of the senses of sight and hearing; yet the finding does not place Hunter where the noise could be heard or the train seen. The action of the court was therefore correct.

The proof, however, supplies all these omissions.

By agreement of parties, a map, of which the following is a copy, was put in evidence as a correct representation of the place of the collision:

(Image Omitted)

About one mile north-east from Lanesville, in Marion county, at a point called Minnowa Crossing, a county road running north and south, on the section line, crosses the

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railroad. The railroad runs straight, in a north-easterly direction, from Lanesville to a long distance beyond Minnowa Crossing. There is a platform at the crossing, where trains sometimes stopped, but express trains did not stop there. East of the crossing there was timber on both sides of the railroad, but the timber did not grow as close to the road on the south side as on the north side. A person traveling on the county road from the south, toward the railroad, when within fifty yards of the railroad, could plainly see a train approaching from the north-east for one hundred and fifty yards. There was no obstruction to the view.

Wm. Records, one of appellee's witnesses, testified, that a man driving a team fifty yards south of and towards the railroad could see the approaching train for a quarter of a mile.

To a person approaching the railroad on the county road, when within thirty feet of the railroad, the approaching train was plainly visible, without obstruction, for a mile. Upon this point there was no conflicting evidence.

The road from Lanesville to Minnowa Crossing, as shown on the accompanying map, is not further than a quarter of a mile from the railroad; and the cars can be easily and plainly seen and heard by persons traveling on said road.

According to the evidence of the conductor, the engineer, and the fireman on the train, and one of the appellee's witnesses, the train approached the crossing at about the rate of twenty-five miles an hour; by other witnesses it was placed beyond this speed; by the finding of the jury, at from thirty to forty miles an hour.

Witnesses, some at the time at a distance of more than a mile from the collision, heard the noise of the approaching train some minutes before the collision.

Andrew Ward, the first witness introduced by appellee, who was driving a wagon a quarter of a mile from the crossing, heard the cars coming very plainly three or four minutes before the collision. See 1 on map.

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The next witness, Louisa Stiers, a little girl, a quarter of a mile distant, reading a paper, heard the coming train for "some time;" and the noise was so loud that it caused her to get up from her seat and look over that way before there was any collision. See 2 on map.

Hattie Stiers, a sister, also introduced by appellee, while eating supper on the north porch of the same house, heard the train coming "a few moments" before the collision. See 2 on map.

Jane Stiers heard the coming train before the collision, and spoke of the fact that it was coming...

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