Chicago & Erie R. Co. v. Ginther
| Decision Date | 18 February 1910 |
| Docket Number | No. 6,618.,6,618. |
| Citation | 90 N.E. 911,48 Ind.App. 12 |
| Court | Indiana Appellate Court |
| Parties | CHICAGO & ERIE R. CO. v. GINTHER. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Pulaski County; J. C. Nye, Judge.
Action by George A. Ginther, administrator, against the Chicago & Erie Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.W. O. Johnson, George C. Gale, and H. A. Steis, for appellant. M. Winfield and M. M. Hathaway, for appellee.
The appellee, administrator of the estate of Joseph W. Davis, deceased, recovered a judgment against the appellant, whose train of cars ran down the intestate, driving his team of horses attached to a wagon over a public crossing of the appellant's railroad track, on a dark, rainy night. A demurrer to the complaint for want of facts was overruled, as was also the appellant's motion for a new trial.
It is claimed on behalf of the appellant that there are no facts alleged in the complaint which show the negligent act complained of to have been the proximate cause of the injury; that the allegations do not sufficiently show that the decedent was struck and killed by the engine, but only that it might be so inferred from the facts stated. It is also contended that the complaint does not sufficiently show that the deceased exercised the care and caution required of him by law. The burden as to contributory negligence being by statute (section 362, Burns' Ann. St. 1908) placed upon the defendant, in a case for personal injury or death wrongfully inflicted, it is not necessary for the plaintiff to show affirmatively in the complaint that his intestate was free from fault, and we need not set forth allegations of the complaint with a view to determine whether they show freedom from fault; it not being claimed that they affirmatively show fault on the part of the decedent.
After alleging that it was a dark and stormy evening, and that the intestate was driving homeward, it was alleged that he drove his team upon the crossing, and as he entered upon the crossing, going north, the train in question, going east “at a high rate of speed, and more than two hours late, propelled by a locomotive, struck said team and wagon with great force, and killed said team of horses instantly, and destroyed said wagon and harness and killed the deceased, *** and deceased was killed solely by reason of being struck by said locomotive pulling said train; *** that the deceased was thus killed, and the team of horses and wagon destroyed, solely by and through the negligence of the defendant, its agents, and servants operating said train; that there was no headlight on the engine to give any warning; that no whistle was sounded nor bell rung for said crossing; that by reason of the intense darkness the deceased could not see said train approaching; that by reason of the wind blowing in the opposite direction to the approach of the train he could not hear its approach; that if a headlight had been displayed on said locomotive, the deceased could have seen the train in time to have avoided the injury; that had the whistle been sounded within 80 rods, and not more than 100 rods, to said crossing, the deceased would have heard the same and avoided the injury, and had said bell been rung continuously from a point not less than 80 rods, nor more than 100 rods, from said crossing until said engine had approached said crossing, the deceased would have heard the same; that by reason of the aforesaid negligence on the part of the defendant, by its agents and employés, in failing to have the headlight on its locomotive, and to sound the whistle and to ring the bell as aforesaid, the deceased was lured to said place of danger and killed, and said team of horses and wagon destroyed; *** that under the rules of said company,and all other railroad companies, locomotives are required to have headlights at night displayed on the front of the engine, which headlight gives notice to persons who might be at or near the crossing of the approach of the train; that such was the rule of the defendant's railroad company at that time, and for a long time prior thereto; that on this particular evening of June 17, 1905, the defendant's agents and servants in the employment of defendant, and while in the line of their employment, neglected and failed to have said headlight displayed on the front of the engine, but carelessly, negligently, and recklessly ran said train on a dark and stormy night, at a high rate of speed, as aforesaid, without any such light; that by reason of the aforesaid facts and the failure of the agents and servants of the defendant in charge of said engine of said defendant to sound the whistle and ring the bell as aforesaid, the deceased was killed, and not otherwise.” It might be said that the pleading is not well arranged, yet we think it not properly subject to the objections urged against it.
We are asked to reverse the judgment upon the evidence. While upon material matters of fact the evidence is quite conflicting and exceedingly persuasive of a different conclusion from that reached by the jury, yet after a careful analysis of it we must conclude that there was such evidence both upon the question as to the negligence of the appellant and that as to the contributory negligence of the decedent that they were both properly left to the jury. This being true, we would not be authorized to reverse the judgment upon the evidence alone without overreaching our true province.
It is earnestly argued that there was error in the instructions to the jury, on the ground that the court permitted the jury, in determining the question as to the decedent's contributory negligence, to take into consideration the effect upon his conduct of certain negligent acts or omissions on the part of the appellant; as, the failure to give the statutory signals, and the failure to carry a lighted headlight upon the locomotive, running at a high rate of speed on a dark and stormy night. In the same connection the court instructed the jury that it was proper for them to consider all the evidence surrounding the transaction, together with all the other evidence in the case showing the surroundings and opportunities, or want of opportunities, if any, the decedent had of seeing and hearing the approaching train; also, the jury were instructed, at the request of the appellant, that it is a presumption of law that a traveler who is approaching and...
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