Cleveland, C., C. & St. L. Ry. Co. v. Starks

• Decision Date: 10 June 1910
• Docket Number: No. 21,686.,21,686.
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. STARKS.

174 Ind. 345

92 N.E. 54

CLEVELAND, C., C. & ST. L. RY. CO.

v.STARKS.

No. 21,686.

Supreme Court of Indiana.

June 10, 1910.

Appeal from Circuit Court, Ripley County; Francis M. Thompson, Judge.

Action by Mary A. Starks against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court. Reversed and remanded for new trial.

For opinions in Appellate Court, see 89 N. E. 602 and 91 N. E. 565.

John O. Cravens, Thos. S. Cravens, L. J. Hackney, and F. L. Littleton, for appellant. Connelley & Kline, for appellee.

MONTGOMERY, J.

This cause was transferred from the Appellate Court under the provisions of subdivision 2 of section 1394 of Burns' Annotated Statutes of 1908. Appellee recovered judgment for the killing of Francis M. Starks at a grade crossing over appellant's railroad tracks. Errors have been assigned upon the overruling of appellant's demurrer to each paragraph of complaint, and its motion for a new trial.

The complaint was in five paragraphs, but the first was withdrawn.

The second paragraph of complaint charges that the death of the decedent was negligently caused by appellant's failure to give the statutory signals or other warning of the train's approach to the crossing, and that he left surviving his widow, Mary A. Starks, appellee, and certain named minor children, who were dependent on him for support. No express allegation of resulting damages in any sum was made. It is urged that this paragraph is defective and insufficient for the want of an allegation that damages were sustained. It has been expressly held that a complaint for a wrongful death which shows the survival of a widow and infant children of the decedent is sufficient, “although it is not directly alleged that the surviving kinfolks sustained actual damages. The legal presumption is that infant children are entitled to the benefit of the father's services, and that the wife is entitled to the benefit of the services and assistance of her husband, and that such services are of value to her and her children.” Chicago & Erie R. Co. v. Thomas, 155 Ind. 634, 58 N. E. 1040;Korrady v. Lake Shore, etc., R. Co., 131 Ind. 261, 29 N. E. 1069;Clore v. McIntire, 120 Ind. 262, 264, 22 N. E. 128;Louisville, etc., R. Co. v. Buck, 116 Ind. 566, 19 N. E. 453, 2 L. R. A. 520, 9 Am. St. Rep. 883. See, also, Atchison, etc., R. Co., v. Weber, 33 Kan. 543, 6 Pac. 877, 52 Am. Rep. 543;Houghkirk v. Prest., etc., D. & H. C. Co., 92 N. Y. 219, 44 Am. Rep. 370;Haug v. Great Northern R. Co., 8 N. D. 23, 77 N. W. 97, 42 L. R. A. 664, 672, 73 Am. St. Rep. 727; 13 Cyc. 344.

The third paragraph is attacked for the alleged reasons that it appears from this paragraph that the decedent could not have seen the approaching train, and could not have heard the signals if given. This paragraph alleges facts showing obstructions to seeing and hearing the approach of a west bound train when traveling southward on the highway, that the crossing was dangerous, and that the train which struck decedent's vehicle was run at a very high rate of speed, and that no signals or warning of its approach were given. The fact that appellee could by the exercise of ordinary care for his safety have discovered the train's approach before the accident does not affirmatively appear in our opinion, and hence the inference of contributory negligence does not necessarily arise, and this paragraph of complaint is sufficient.

It is claimed that the fourth paragraph of complaint is bad because it does not sufficiently show that the intestate was using the highway as a traveler, and, as such, drove upon the crossing at the time of the collision. It is alleged that the decedent was traveling southward along a public highway in a vehicle, and was struck when he reached the main track of appellant's road. The facts alleged are sufficient to show that the use of the crossing by the deceased was that of an ordinary traveler or passer over the highway, for whose safety in such use appellant was bound to exercise ordinary care. The facts alleged readily distinguished this from the case of Chicago, etc., R. Co. v. McCandish, 167 Ind. 648, 79 N. E. 903, and the paragraph is not open to the objection urged by appellant's counsel.

The fifth paragraph of complaint purports to charge that the decedent's death was intentionally caused by appellant's engineer. No objection to the sufficiency of this paragraph has been pointed out in appellant's brief, and the alleged error in overruling its demurrer thereto must be regarded as waived. The court over appellant's objection permitted appellee to prove that the decedent treated his minor children with kindness. Testimony as to the general character of the deceased for industry and his relation and attitude toward his children, with respect to kindly attention, care and provision for support, is competent in actions of this character. No error was committed in receiving the evidence on this subject to which objections were made. Board, etc., v. Legg, 93 Ind. 523, 47 Am. Rep. 390;Anthony Ittner, etc., Co. v. Ashby, 198 Ill. 562, 64 N. E. 1109;Union Pac. R. Co. v. Sternberger, 8 Kan. App. 131, 54 Pac. 1101;Tilley v. Hudson R. R. Co., 29 N. Y. 252, 86 Am. Dec. 297;Chilton v. Union Pac. R. Co., 8 Utah, 47, 29 Pac. 963. The court gave the jury the following...