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

• Decision Date: 08 October 1907
• Docket Number: No. 6,071.,6,071.
• Court: Indiana Appellate Court
• Parties: BALTIMORE & O. S. W. R. CO. v. HICKMAN.

40 Ind.App. 315

81 N.E. 1086

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

v.HICKMAN.

No. 6,071.

Appellate Court of Indiana, Division No. 2.

Oct. 8, 1907.

Appeal from Circuit Court, Lawrence County; Jas. B. Wilson, Judge.

Action by James Hickman against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. R. Gardiner, C. K. Tharp, C. G. Gardiner, and R. N. Palmer, for appellant. Brooks & Brooks, F. A. Seal, and McCormick & Gilkison, for appellee.

ROBY, J.

Action by appellee for the recovery of damages averred to have been caused by the death, through appellant's negligence, of his son, who was not quite 10 years of age. The complaint was in one paragraph. Its substance is that on March 10, 1905, appellant's railroad, consisting of a main track and side track, crossed Depot street, in the city of Loogootee; that the distance between said tracks was 5 feet, and that it negligently maintained certain buildings upon its right of way adjacent to said side track, and negligently placed cars upon said side track and in said street, thereby obscuring approaching trains from persons going toward said tracks from the south; that it had for a long time maintained at said crossing an automatic alarm bell, operated by electricity, for the purpose of warning travelers of the approach of trains when the same were 300 feet distant; that the appellee and decedent relied upon said alarm; and that appellant negligently suffered the same to be out of order, so that it had failed to sound any alarm, of which condition appellant did, and decedent did not, know. The existence of an ordinance limiting the speed of trains to 10 miles an hour through said city, and the negligent violation thereof on the occasion in question, is also set up; and it is further averred that the appellant negligently failed to sound the whistle or ring the bell upon its locomotive engine, as required by statute; that said train was due at said crossing at 12:36 p. m., that at 12:56 p. m. decedent undertook to cross the said tracks and was struck by said train, which he did not and could not see, and was instantly killed; that his death was caused by the negligence specified. The issue formed by a denial was submitted to a jury, which rendered a verdict against appellant for $2,000, with answers to interrogatories. Appellant's motions for judgment upon the answer to interrogatories and for a new trial were overruled, and judgment was rendered upon the verdict.

It is admitted that there was evidence sustaining the verdict so far as the negligence charged against appellant is concerned, and no interrogatory relative to the subject was submitted. The proposition relied upon by appellant is that the decedent was contributorily negligent. Appellee asserts that the proposition requires the conduct of a 10 year old boy to be measured as though he were an adult. Appellant in its reply disclaims this attitude, and asserts that the facts show the child to have exercised no care, and that, as it was not non sui juris, some care was required.The answers to interrogatories show that appellant's railroad runs east and west; Depot street, north and...