Cincinnati, Indianapolis And Western Railroad Co. v. McGaughey

• Decision Date: 14 May 1925
• Docket Number: 12,292
• Citation: 147 N.E. 727,85 Ind.App. 1
• Parties: CINCINNATI, INDIANAPOLIS AND WESTERN RAILROAD COMPANY v. MCGAUGHEY, ADMINISTRATRIX
• Court: Indiana Appellate Court

147 N.E. 727

85 Ind.App. 1

CINCINNATI, INDIANAPOLIS AND WESTERN RAILROAD COMPANY v. MCGAUGHEY, ADMINISTRATRIX

No. 12,292

Court of Appeals of Indiana

May 14, 1925

Rehearing denied October 13, 1925. Transfer denied June 4 1926.

From Hendricks Circuit Court; Zimri E. Dougan, Judge.

Action by Maude M. McGaughey, administratrix, against the Cincinnati, Indianapolis and Western Railroad Company and another. From a judgment for plaintiff against the named defendant, said defendant appeals.

Affirmed.

Frank J. Goebel, Jacob S. White and Anthony P. Donadio, for appellant.

Beckett & Beckett, for appellee.

OPINION

NICHOLS, J.

This was an action by appellee against appellant and the Cleveland, Cincinnati, Chicago and St. Louis Railway Company for wrongfully causing the death of Charles McGaughey. Accompanied by one Charles Newman, he was walking in a southerly direction on Holmes avenue in the city of Indianapolis, and while in the act of crossing the railroad tracks of appellant which intersect said Holmes avenue at grade, after having traversed three tracks belonging to the Cleveland, Cincinnati, Chicago and St. Louis Railway Company he was struck by an east bound passenger train operated by appellant. He died a few hours later as the result of injuries sustained. Just before the trial was commenced, appellee dismissed the cause as against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company.

There was a trial by jury resulting in a verdict and judgment against appellant for $ 7,000. The error relied upon for reversal is the court's action in overruling appellant's motion for a new trial.

Appellant contends with much earnestness in the first place that appellant was not guilty of negligence, and secondly, if so still appellee's decedent was guilty of contributory negligence as a matter of law, and that, therefore, there can be no recovery. The evidence shows by divers witnesses that appellant was operating its train that struck appellee's decedent, through a populous part of the city of Indianapolis, over the crossing where the accident occurred, at a high and dangerous rate of speed, to wit: thirty-five miles per hour, without blowing the whistle or sounding the bell, and that it failed to lower the crossing gates installed for the protection of the public. Each of these acts of negligence was in violation of a city ordinance. Corroborative of the speed of the train, it appears by the evidence that the decedent was knocked forty-five or fifty feet by its force. We hold that there was ample evidence from which the jury might reasonably infer the negligence of appellant. But appellant argues that the decedent was guilty of contributory negligence as a matter of law. It is with much hesitation that the courts will declare that a given state of facts show contributory negligence as a matter of law. Ordinarily, it is the province of the jury to determine as to whether such facts show contributory negligence, and, unless they are undisputed and such as to impel an inference of negligence in the minds of all reasonable persons, the question must be left to the jury. We find no such state of facts here as would justify taking the case from the jury. The gates, which had been...