Baker v. Baltimore and Ohio Southwestern Railroad Company

• Decision Date: 31 March 1916
• Docket Number: 8,970
• Citation: 112 N.E. 27,61 Ind.App. 454
• Parties: BAKER, ADMINISTRATOR v. BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY
• Court: Indiana Appellate Court

112 N.E. 27

61 Ind.App. 454

BAKER, ADMINISTRATOR v. BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY

No. 8,970

Court of Appeals of Indiana

March 31, 1916

From Martin Circuit Court; James W. Ogdon, Judge.

Action by Daniel A. Baker, administrator of the estate of Phoeba Baker, deceased, against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for defendant, the plaintiff appeals.

Reversed.

Frank E. Gilkison, for appellant.

W. R Gardiner, C. K. Tharp, C. G. Gardiner, Fabius Gwin and Edward Barton, for appellee.

OPINION

HOTTEL, J.

This is an appeal from a judgment against appellant in an action brought by him against appellee to recover damages on account of the death of Phoeba Baker, alleged to have been caused by appellant negligently striking her with one of its trains at Shoals, Indiana. Said Daniel A. Baker, the administrator, was the husband and only heir of the deceased Phoeba Baker. A trial by jury resulted in a verdict for appellant in the sum of $ 1,000. With its general verdict, the jury returned answers to interrogatories. Appellee's motion for judgment thereon was sustained. The ruling on this motion is assigned as error and relied on for reversal. In determining the correctness of such ruling, this court will not look to the evidence actually given in the case, but will search the pleadings to see if, by any evidence possible under the issues, such answers can be reconciled with the general verdict, and every possible reasonable inference and presumption deducible from evidence which might have been admitted in support of such verdict will be indulged in its favor. Lutz v. Cleveland, etc., R. Co. (1915), 59 Ind.App. 16, 23, 108 N.E. 886; Myers v Winona, etc., R. Co. (1915), 58 Ind.App. 516, 106 N.E. 377.

The averments of the complaint which have a controlling influence on the question presented by the answers to interrogatories are in substance, as follows: On October 25, 1913, appellee's railroad, main track and sidetrack, crossed one of the frequently traveled public streets of the west part of the town of Shoals, Indiana, and appellee was then operating one of its trains on its main line over and across such street. Immediately west of the crossing, the railroad track curves sharply to the north, and on the north side of the railroad and for a long distance west thereof there was, and is, a high hill which obstructs the view of such road west of the crossing for a distance of more than 250 feet. On the occasion in question, there was a train on the sidetrack west of said crossing about twenty yards, making it impossible to see approaching trains westward from said point for more than 150 feet. An ordinance of the town in force and effect at the time limited the speed of trains passing through such town to six miles an hour. At the time in question, appellee carelessly and negligently ran its train No. 8 operated by a locomotive engine, from the west toward, over and across the public crossing at the rate of 60 miles an hour, and in so doing negligently omitted to sound the whistle on said locomotive and negligently failed to ring the bell thereon from a point 80 rods west of the crossing to such crossing. Such train, on this occasion and for several months prior thereto, was due at the crossing at 2:29 p. m., and this fact was known to the public and to appellant's decedent. On the occasion in question, decedent, for the purpose of crossing the track, approached the crossing from the south in a careful and cautious manner about three o'clock p. m. At the same time appellee's train was approaching the crossing from the west. Because of the curve in appellee's track, the high hill on the north side thereof and the freight train on the sidetrack, decedent was unable to see such approaching train, and because of appellee's neglect and failure to ring the bell and sound the whistle on its locomotive, decedent was unable to hear and did not hear such train, and decedent had no notice of such approaching train until she was on the track and it struck her, and while in the act of crossing such track, decedent was by appellee's negligence struck by the train and so seriously injured thereby that she died from such injuries three days later. Decedent would not have been injured but for appellee's negligence. Had the whistle been sounded or the bell rung, decedent would have heard the same and would have been warned of the approaching train and would not have gone on the track, and had the train been running within the speed limit provided by the ordinance, decedent could have escaped from the track and avoided her injury and death.

The interrogatories and answers thereto are as follows: "1. As the plaintiff's decedent, Phoeba Baker approached the railroad tracks of the defendant at the time and place where she was struck and killed how far could she have seen a train approaching from the west when she was fifty feet from such place, had she looked to the west? A. 100 yards * * * 2. How far could she have seen such approaching train when she was twenty-five feet from such track, had she looked in the direction from which the train was coming? A. 75 yards * * * 3. How far could she have seen such approaching train when she was ten feet from such track, had she looked in the direction from which the train was coming? A. 100 feet * * * 4. How far could she have seen the train which struck her, when she was at the south rail of the main track had she looked to the west? A. 150 feet * * * 5. At the time plaintiff's decedent was at the end of the ties on the south side of the main track, could she not have seen the train which struck her had she looked to the west when it was as much as two hundred and fifty feet away from the place where she was struck? A. Yes. * * * 6. If you shall answer the fifth interrogatory in the negative, then state how far she could have seen such train had she looked? A. 250 ft."

It is asserted by appellant that interrogatories Nos. 4, 5 and 6 are deceptive and misleading, and for this reason were improper and should not have been given. In support of this contention, appellant insists, in effect, that each of the last three interrogatories contains a concealed assumption that the train which struck and injured decedent was within the range of vision expected to be elicited by the answer of the jury to the particular interrogatory at the particular time decedent was at the point indicated in such interrogatory as the point concerning which the inquiry therein was made. Such interrogatories are, we think, subject to the infirmity suggested by appellant, but the infirmity is one which the trial court did, and this court can, obviate or cure by ignoring the partially concealed assumption contained in such interrogatories, and giving to the answers thereto a construction as favorable to the general verdict as any fair interpretation to which such interrogatories are susceptible will permit. When we give to said interrogatories such interpretation, the jury, by its answers thereto, found that if decedent, when approaching the appellee's track had looked to the west when fifty feet distant she could have seen the train 100 yards away, if such train, at that particular time, had in fact been within that distance; that when twenty-five feet from the track she, by then looking west, could have seen such train seventy-five yards distant, if it in fact, at that particular time, had been within that distance; that when ten feet from the track she, by then looking west, could have seen the train 100 feet distant, if at such time such train had, in fact, been within that distance; that when on the south rail of the main track, if she had then looked...