Brooks v. Muncie And Portland Traction Co.
| Citation | 95 N.E. 1006,176 Ind. 298 |
| Decision Date | 05 October 1911 |
| Docket Number | 21,880 |
| Parties | Brooks, Administrator, v. Muncie and Portland Traction Company |
| Court | Supreme Court of Indiana |
From Delaware Circuit Court; Joseph G. Leffler, Judge.
Action by George W. Brooks, as administrator of the estate of Sanford L. McKinney, deceased, against the Muncie and Portland Traction Company. From a judgment for defendant plaintiff appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.
Affirmed.
George H. Koons, for appellant.
Frank H. Snyder, Rollin Warner and Whitney E. Smith, for appellee.
Appellant as administrator of the estate of Sanford L. McKinney, deceased, instituted this action against appellee, for damages for the alleged negligent killing of his decedent.
There was a trial by jury and a verdict for defendant. A motion for a new trial was overruled, and judgment was rendered for defendant. From this judgment plaintiff appeals.
The errors assigned are the overruling of the motion for a new trial, and rendering judgment against appellant for costs.
The grounds assigned for a new trial were that the verdict was contrary to law and was not sustained by sufficient evidence, and that the court erred in giving to the jury certain instructions, and in refusing to give certain instructions requested by plaintiff.
Interrogatories, submitted by the court, were answered by the jury, and returned with the general verdict.
The first and second paragraphs of complaint allege that the death of plaintiff's decedent was caused by defendant's negligence; the third paragraph alleges that the death of decedent was caused by injuries wilfully inflicted by defendant's servants.
The errors assigned require this court to determine the sufficiency of the evidence to support the verdict. The following facts are supported by the evidence: In August, 1906, when the fatal accident occurred, defendant was operating an interurban electric railway on its right of way which ran from the northeast to the southwest. The accident occurred at the intersection of defendant's track by a public highway, running north and south. On the east side of the highway there was a corn field, extending south to defendant's right of way. The corn in the field was thick, and about ten feet high, and obstructed the view to the east. The point of the corn field farthest south was about forty feet north of the railway track. The railroad was about three feet higher than the level of the highway, and was ballasted with broken stone, and this broken stone extended about eight feet north of the track. The three feet of incline commenced eight feet north of the track. The corn field extended east 1,400 feet, and north to Caleb Reed's residence. East of the corn field were woods. Caleb Reed lived on the east side of the highway, about four hundred feet north of the crossing. From his residence south to the railway there was a gentle decline. In driving south along the highway, after passing the corn field, there was nothing to obstruct the view of a car approaching from the east, except wooden trolley-poles, twelve to fifteen inches in diameter and thirty-four feet high, located 100 feet apart, on a line six to seven feet north of the track. These poles did not obstruct the view until the traveler approached to within eight feet of the track, and ceased to obstruct the view of a person within six feet thereof. Decedent was familiar with the crossing. On the afternoon of the accident, decedent and his brother-in-law, Frank H. Young, were riding south on the highway in a spring wagon. Decedent was on the east side of the seat, driving the horse. The horse that drew the wagon was trotting slowly, four or five miles an hour. When the wagon passed the Reed residence, both decedent and Young spoke to Reed. When they were so passing, some pigs ran out of the lot onto the highway, and in front of the wagon. Reed went into the highway, watching the pigs, and observing decedent and Young until the time of the accident. The horse continued in the slow trot, with the pigs running ahead of the vehicle. When the wagon reached the rock ballast, that leads up onto the track, both decedent and Young were leaning forward in the wagon with their heads close together. There was a lunch pail in the wagon. When the wagon was about one hundred feet north of the crossing, Reed saw a car approaching from the east, from four hundred to four hundred fifty feet away. When the wagon started onto the rock, about eight feet north of the rail, Reed shouted a warning to decedent and Young, but the warning was not heard. At that time the horse changed its gait from a trot to a walk. Neither Young nor decedent looked to the east before the accident. The wagon was struck by the approaching car, and decedent was instantly killed. A very short time before the accident, a passenger-car had passed over the crossing, going west. This was observed by Young and decedent, as they approached the crossing. The car that struck decedent was an express-car, and approached the crossing at a speed of from forty-five to fifty miles an hour. The car was equipped with a whistle, which was sounded when the car was about one thousand feet east of the crossing. The whistle was sounded but the one time during the approach of the car from a point one hundred rods east of the crossing. When about two hundred fifty feet east of the crossing, the motorman saw the horse approaching the crossing, and immediately set the emergency brakes on the car and endeavored to sound the whistle, but failed. When about seventy-five feet from the crossing the motorman shouted, to attract the attention of the occupants of the vehicle. The hearing and eyesight of both decedent and Young were good.
Under the facts proved, we cannot say that the jury was not warranted in finding for defendant, by reason of decedent's contributory negligence. Nor can we say that defendant's negligence, in failing to sound the whistle, at a distance of not more than one hundred, nor less than eighty rods from the crossing, was the proximate cause of the injury. The whistle was sounded when about sixty rods east of the crossing, but was not heard. It is less likely that a sound of the whistle eighty to one hundred rods away would have been heard. The jury found, by answers to proper interrogatories, that the injury to decedent was not wilfully inflicted by defendant's servants. The evidence supports the jury's finding in this particular. The verdict was sufficiently supported by the evidence.
Appellant claims that the court erred in giving the following instruction: "Even though you should find that defendant was negligent as charged in the first and second paragraphs of the amended complaint, yet, if it also appears from a fair preponderance of the evidence, whether from that introduced by the plaintiff or by the defendant, or both, that plaintiff's decedent was also negligent in any matter approximately contributing to his injury, such negligence on his part would defeat his cause of action stated in those paragraphs, and he could not recover thereon."
The word "approximately" is used in this instruction instead of "proximately." The words, in meaning, are so closely allied that the use of the former, in the construction in which it appears in this instruction, could not have misled the jury, especially in view of other instructions given. Pledger v. Chicago, etc., R. Co. (1903), 69 Neb. 456, 95 N.W. 1057.
It is further claimed that the instruction was erroneous because the court failed to charge the jury that such negligence of plaintiff must "materially" contribute to his injury. In support of this contention, appellant cited Indianapolis, etc., Transit Co. v. Edwards (1905), 36 Ind.App. 202, 74 N.E. 533. Conceding the correctness of appellant's claim, the omission is harmless. In instruction five, given by the court, the jury was told plaintiff's right of recovery would not be defeated "unless you should believe from the evidence that the plaintiff's decedent was guilty of contributory negligence which materially contributed to his injuries." The jury was likewise instructed in the thirteenth, twenty-second and thirty-sixth instructions given by the court.
In its twenty-fifth instruction the court told the jury that it was the duty of a traveler, about to cross a railroad track, to listen for signals, and to look up and down the track; that if a person could have seen an approaching car in time to escape, it will be presumed, in case of injury, either that he did not look, or, if he did, that he did not heed what he sa...
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