Baker v. Baltimore & O.S.W.R. Co.

• Decision Date: 31 March 1916
• Docket Number: No. 8970.,8970.
• Citation: 112 N.E. 27,61 Ind.App. 454
• Court: Indiana Appellate Court
• Parties: BAKER v. BALTIMORE & O. S. W. R. CO.

61 Ind.App. 454

112 N.E. 27

BAKER

v.BALTIMORE & O. S. W. R. CO.

No. 8970.

Appellate Court of Indiana, Division No. 1.

March 31, 1916.

Appeal from Circuit Court, Martin County; James W. Ogden, Judge.

Action by Daniel A. Baker, administrator, against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for defendant, plaintiff appeals. Judgment reversed, with instructions to grant new trial.Frank E. Gilkison, of Shoals, for appellant. F. Gwin, of Shoals, and Gardiner, Tharp & Gardiner, of Washington, Ind., for appellee.

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 Phœba Baker, alleged to have been caused by appellant negligently striking her with one of its trains at Shoals, Ind. Said Daniel A. Baker, the administrator, was the husband and only heir of the deceased, Phœba 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.

[1] 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 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., 59 Ind. App. 16, 23, 108 N. E. 886;Meyers v. Winona, etc., R. Co., 58 Ind. App. 516, 106 N. E. 377.

The averments of the complaint which have a controlling influence on the questions presented by the answers to interrogatories are, in substance, as follows: On October 25, 1913, appellee's railroad, main track and side track, crossed one of the frequently traveled public streets of the west part of the town of Shoals, Ind., 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 said railroad, and for a long distance west thereof, was, and is, a high hill, which obstructs the view of such road west of said crossing for a distance of more than 250 feet. On the occasion in question there was a train on the side track west of said crossing about 20 yards, making it impossible to see approaching trains westward from said point for more than 150 feet. An ordinance of said town, in force and effect at said time, limited the speed of trains passing through such town to 6 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 said public crossing at the rate of 60 miles an hour, and in so doing negligently omitted to sound the whistle of said locomotive, and negligently failed to ring the bell thereon from a point 80 rods west of said crossing to such crossing. Such train, on this occasion and for several months prior thereto, was due at said 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 said track, approached said crossing from the south in a careful and cautious manner about 3 o'clock p. m. At the same time appellee's said train was approaching said crossing from the west. Because of said curve in appellee's track, said high hill on the north side thereof, and said freight train on the side track, 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 said 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 not gone on the track, and had the train been running within the speed limit provided by said 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, Phœba 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 50 feet from such place, had she looked to the west? Answer: 100 yards. ***

(2) How far could she have seen such approaching train when she was 25 feet from such track, had she looked in the direction from which the train was coming? Answer: 75 yards. ***

(3) How far could she have seen such approaching train when she was 10 feet from such track, had she looked in the direction from which the train was coming? Answer: 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? Answer: 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 250 feet away from the place where she was struck? Answer: 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? Answer: 250 ft.”

[2][3] It is asserted by appellant that interrogatories 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 50 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 25 feet from the track she, by then looking west, could have seen such train 75 yards distant, if it in fact, at that particular time, had been within that distance; that when 10 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...