Baltimore & O.S.W. Ry. Co. v. Musgrave

• Citation: 24 Ind.App. 295,55 N.E. 496
• Parties: BALTIMORE & O. S. W. RY. CO. v. MUSGRAVE.
• Decision Date: 29 November 1899
• Court: Indiana Appellate Court

24 Ind.App. 295

55 N.E. 496

BALTIMORE & O. S. W. RY. CO.

v.MUSGRAVE.¹

Appellate Court of Indiana.

Nov. 29, 1899.

Appeal from circuit court, Gibson county; Alex. Gilchrist, Special Judge.

Action by Charles Musgrave against the Baltimore & Ohio Southwestern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

W. H. De Wolf, Gardiner & Gardiner, L. C. Embree, and E. W. Strong, for appellant. Cullop & Kessinger and Buskirk & Brady, for appellee.

HENLEY, J.

Action for damages resulting from the alleged negligence of appellant. The complaint is in one paragraph, and avers, in substance, the following facts: That on the night of July 9, 1897, the appellee was riding in a carriage drawn by two gentle horses, and driven by a careful driver, and while so driving along Third street, in the city of Vincennes, where appellant's track crosses said Third street, and when approaching said crossing, and without any notice or warning of the approach of a train on appellant's track, and while carefully watching for the approach of a train on said track, and when in close proximity to said track, one of appellant's rapidly moving passenger trains approached said crossing, and without any warning or signal of its approach, and while appellee was holding the team of horses attached to the carriage, the said team of horses took fright at the rapidly moving train, and became unmanageable, and threw appellee, with great force, against the train, thereby injuring him. It is further alleged that on the side of the track from which appellee was approaching there was a side track belonging to appellant upon which there were box cars obstructing the view of approaching trains for a long distance on both sides of the street, and which also prevented the sound of approaching trains being heard by travelers, and that large and high buildings on both sides of the street prevented the sound of approaching trains and obstructed the view; that, on account of the box cars being on the side track, the horses drawing the carriage in which appellee was riding could not be turned after they had arrived at a point where the approaching train could be seen or heard, and the horses would be so near the approaching train that it would be impossible to drive across the track in front of the train without colliding with it. It is alleged that appellant was running its train at a rate of speed exceeding six miles an hour, in violation of the ordinance of the city of Vincennes, and that the train approached the crossing without sounding the whistle or ringing the bell, and without giving any signal whatever of its approach, and that there was no watchman stationed at said crossing, as by the ordinance of said city appellant is required to have; that, if appellant had not been negligent in the several matters charged, appellee and the driver could have heard the approach of the train in time to have stopped the horses before they were near the crossing, and could have prevented the said horses from becoming frightened, and thereby have prevented appellee from being thrown against the train; that appellee sustained his injuries wholly through the negligence of appellant, and without any fault or negligence on his part. The complaint was tested by demurrer in the lower court, that court holding the complaint sufficient. An answer of general denial was filed, the cause submitted to a jury for trial, and verdict for appellee. With the general verdict the jury returned answers to interrogatories. Appellant moved for judgment on the special findings of fact notwithstanding the general verdict. Over appellant's motion for a new trial the court rendered judgment against appellant for $1,500 and costs.

The first alleged error discussed by counsel in their brief arises from the action of the lower court in overruling the demurrer to the complaint. The complaint, we think, sets out sufficiently certain acts of negligence on the part of appellant to create a liability. It also alleges that, by reason of such acts, appellee received his injury. In addition to the specific acts of negligence alleged, there is the general allegation of appellee's freedom from contributing to the injury received thereby. There was no error in overruling the demurrer to the complaint.

It is next contended that the lower court erred in overruling appellant's motion for judgment upon the special finding of facts notwithstanding the general verdict. It was specially found by the jury that appellee was injured by a collision with a passenger train composed of a locomotive and nine coaches, known as train “No. 6,” on appellant's road, on the morning of July 9, 1897; that appellee was riding in a carriage drawn by two gentle horses; that the train with which appellee collided was running east, and at the Third street crossing, the point where the collision occurred, there was a side track located eight feet from the main track; that said train was running at a speed of more than seven miles per hour; that the engineer in charge of the locomotive drawing said train did not sound the whistle between the bridge over the Wabash river and the Third street crossing, but at the west side of the bridge the engineer sounded the whistle for the approach to the city of...