Brooks v. Muncie & P. Traction Co.
| Decision Date | 05 October 1911 |
| Docket Number | No. 21,880.,21,880. |
| Citation | 95 N.E. 1006,176 Ind. 298 |
| Court | Indiana Supreme Court |
| Parties | BROOKS v. MUNCIE & P. TRACTION CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Delaware County; James G. Leffler, Judge.
Action by George W. Brooks, as administrator, etc., against the Muncie & Portland Traction Company. Judgment for defendant, and plaintiff appeals. Case transferred from the Appellate Court under Acts 1901, c. 259 (Burns' Ann. St. 1908, § 1405). Affirmed.Geo. H. Koons, for appellant. Snyder & Smith and Rollin Warner, for appellee.
The appellant, George W. Brooks, as administrator of the estate of Sanford L. McKinney, deceased, instituted this action against appellee for damages, for the alleged negligent killing of appellant's decedent.
There was a trial by jury and verdict for defendant. A motion for a new trial was overruled, and judgment was rendered for defendant. From this judgment, plaintiff appeals. The assigned errors 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; that the court erred in the giving of certain instructions to the jury; that it also erred in refusing to give to the jury 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 alleged that the death of plaintiff's decedent was caused by defendant's negligence; the third paragraph alleged that the death of decedent was caused by injuries willfully inflicted by defendant's servants.
[1] The errors assigned here 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 cornfield, extending south to defendant's right of way; the corn in the field was thick, and about 10 feet high, and obstructed the view to the east. The point of the cornfield farthest south was about 40 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 cornfield extended east about 1,400 feet, and north to Caleb Reed's residence. East of the cornfield was a woods. Caleb Reed lived on the east side of the highway, about 400 feet north of the crossing. From his residence south to the railway there is a gentle decline. In driving south along the highway, after passing the cornfield, there was nothing to obstruct the view of a car approaching from the east, except wooden trolley poles, 12 to 15 inches in diameter, and 34 feet high, located 100 feet apart, on a line 6 to 7 feet north of the track. These poles did not obstruct the view until the traveler approached to within 8 feet of the track, and ceased to obstruct the view of one within 6 feet thereof.
The decedent was familiar with the crossing. On the afternoon of the accident, decedent, with 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 which drew the spring wagon was trotting slowly, four or five miles per hour. When the spring wagon was passing the Reed residence, both decedent and Young spoke to Reed. When they were passing Reed's, some pigs ran out of Reed's lot onto the highway, and ran in front of the spring wagon. Reed went into the highway, watching the pigs in front of the wagon, and observed decedent and Young up until the time of the accident. The horse continued in the slow trot, with the pigs running ahead of the vehicle. When the spring wagon reached the rock ballast that leads up onto the track, both decedent and Young were leaning forward in the wagon, with their heads laid together. There was a lunch pail in the wagon. When the wagon was about 100 feet north of the crossing, Reed saw a car approaching from the east, about 400 to 450 feet away. When the rig 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 spring 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 which struck decedent was an express car, and approached the crossing at a speed of from 45 to 50 miles per hour. The car was equipped with a whistle, which was sounded when the car was about 1,000 feet east of the crossing. The whistle was not sounded, except the one time, during the approach of the car from a point 100 rods east of the crossing. When about 250 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 75 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.
[2] Under the above facts, we cannot say that the jury was not warranted in finding for the defendant, by reason of decedent's contributory negligence. Nor can we say that defendant's negligence in failing to sound the whistle while the car was approaching at a distance of not more than 100, nor less than 80, rods from the crossing was the proximate cause of the injury. The whistle was sounded when about 60 rods east of the crossing, but was not heard. It is less likely that a sound of the whistle 80 to 100 rods away would have been heard.
[3] The jury found, by answers to proper interrogatories, that the injury to decedent was not willfully inflicted by defendant's servants. The evidence supports the jury's finding in this particular. The verdict of the jury was sufficiently supported by the evidence.
[4] Appellant claims the court erred in giving the following instruction: “Even though you should find that the 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 the 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 connection 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., 69 Neb. 456, 95 N. W. 1057.
[5] 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 cites 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 No. 5, given by the court, the jury was told the plaintiff's right of recovery would not be defeated, “unless you should believe from the evidence that the plaintiff was guilty of contributory negligence which materially contributed to his...
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