49 N.E. 857 (Ind.App. 1898), 2,382, Aurelius v. Lake Erie and Western Railroad Company

Docket Nº:2,382
Citation:49 N.E. 857, 19 Ind.App. 584
Opinion Judge:WILEY, J.
Attorney:M. E. Forkner and Goodykoonts & Ballard, for appellant. John B. Cockrum, W. E. Hackedorn and William A. Brown, for appellee.
Case Date:March 16, 1898
Court:Court of Appeals of Indiana

Page 857

49 N.E. 857 (Ind.App. 1898)

19 Ind.App. 584




No. 2,382

Court of Appeals of Indiana

March 16, 1898

From the Henry Circuit Court.


M. E. Forkner and Goodykoonts & Ballard, for appellant.

John B. Cockrum, W. E. Hackedorn and William A. Brown, for appellee.



Appellant was plaintiff below, and prosecuted this action against appellee for injuries received by her by one of appellee's trains colliding with a buggy in which she was riding. She was in a buggy belonging to and being driven by one Dr. Edwins, and was on her way with him to procure some medicine for a member of her father's family. [19 Ind.App. 585] He had made a professional call at her father's, and she was accompanying him for the purpose of getting the medicine and carrying it home. She was a minor, being about nineteen years old, and resided with her father in the city of Elwood, and upon application to the court she was permitted to prosecute the action as a poor person. The main track of appellee's road passes through the city of Elwood, running due east and west. Anderson street, in said city, is fifty feet wide, running north and south, and crosses appellee's road at right angles. Elwood is a regular station on said road and all passengers trains are scheduled to stop there.

Appellant and Dr. Edwins were driving north on said street. A regular passenger train from the west, on appellee's road was scheduled to arrive at Elwood at nine fifteen o'clock a. m., on the day of the accident, but was five minutes late. Immediately east of said street and adjoining appellee's right of way on the north, in the angle caused by the crossing of the street, appellee maintained its passenger station and depot. In the southwest angle caused by the intersection of the railroad and said street, there was a one story building standing about twenty feet south of the track and about twelve or fifteen feet west of the street, used as a photograph gallery. South from said point said street was built up with buildings and structures, and trees were growing along the sidewalk and upon private grounds so as

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to obstruct the view and hearing of trains approaching from the west.

The negligence complained of was the alleged careless colliding of appellee's train with the buggy in which she was riding. The complaint is in two paragraphs, but as no question is presented as to the sufficiency of the complaint, it is not necessary to refer to it at any length. It is enough to say that it is [19 Ind.App. 586] charged that appellee's servants in charge of the train, approached said street crossing at a high and dangerous rate of speed, and did not give any signal or warning of its approach by sounding the whistle and ringing the bell. In addition to the general averments of negligence, the second paragraph charges that the engineer in charge of the engine drawing the train, saw appellant's perilous and dangerous position in time to have reversed his engine, and averted the injury, but failed to do so; but upon this point the controversy is put at rest by the express finding of the jury to the contrary. The complaint contains the averment that the appellant and Dr. Edwins, when approaching the crossing, stopped and listened to ascertain if any train was approaching; that they were both in possession of the senses of sight and hearing; that again within about sixty-five feet of the track, Dr. Edwins again checked his horse and stopped, and he and appellant carefully looked and listened, but they did not see or hear any train, and that they started to cross the track when the injury occurred. The complaint contains the necessary averment that the injury resulted without any fault or negligence of appellant or of Dr. Edwins.

The appellee answered by general denial, trial by jury, and a special verdict returned. Each of the parties moved for judgment on the verdict. Appellant's motion was overruled and appellee's sustained. The record shows that appellant tendered certain interrogatories to the court, which she requested the court to submit to the jury as a part of the special verdict, which it refused to do, and embodied the same in a bill of exceptions. The rulings of the court on the respective motions for judgment, and its refusal to submit the interrogatories tendered, are assigned as errors.

[19 Ind.App. 587] The negligence charged against the appellee is fully sustained by the verdict. It is shown that Elwood is a populous city, and that in approaching the crossing at Anderson street, appellee's servants did not give the signals as required by statute, and no warning whatever, except to whistle for the station, about half a mile west of it. The verdict shows that when the train approached the crossing it was running about eight miles an hour. It is unnecessary to set out the facts as found in the verdict, touching the negligence of the appellee, further than to say that to run a locomotive and train of cars across a public street in a populous city without sounding the whistle or ringing the bell, and without giving any warning of its approach, is negligence on the part of those operating the train, and this is what the verdict shows was done. See Lake Shore, etc., R. W. Co. v. Boyts, 16 Ind.App. 640, 45 N.E. 812, and...

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