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

• Decision Date: 08 June 1917
• Docket Number: No. 9501.,9501.
• Citation: 116 N.E. 429,64 Ind.App. 663
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. LUTZ.

64 Ind.App. 663

116 N.E. 429

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

v.LUTZ.

No. 9501.

Appellate Court of Indiana, Division No. 2.

June 8, 1917.

Appeal from Circuit Court, Clark County; James W. Fortune, Judge.

Action by Burdette C. Lutz, administrator of Lydia H. Steirheim, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff's instruction No. 5 was as follows:

“Failure to give the signals, above mentioned, at highway crossings, by one operating an engine and train of cars, approaching the same, is per se, by itself, negligence, and renders the railroad company operating the same liable for injury to person, or death of the person, when the person is without fault.”

Frank L. Littleton, of Indianapolis, and M. Z. Stannard, of Jeffersonville, for appellant. H. W. Phipps, of Jeffersonville, and George H. D. Gibson, of Charlestown, for appellee.

IBACH, P. J.

Appellee recovered a judgment against appellant for $2,000 damages for the killing of his decedent at a public street crossing in the town of Charlestown. Appellant appeals and assigns as error: (1) The overruling of its demurrer to the first paragraph of amended complaint. (2) The overruling of its demurrer to the second paragraph of amended complaint. (3 and 4) The overruling of its motion for judgment on the answers to interrogatories, and for a new trial, respectively.

[1] The first two assigned errors present no question. This is a second appeal. See Lutz v. Cleveland, etc., R. Co., 59 Ind. App. 16, 108 N. E. 886. The rulings on the demurrers now complained of were made prior to the judgment from which the former appeal was taken, and were properly assignable as cross-errors in that appeal.

“The question might have been presented in the previous appeal by assigning cross-errors. Appellant failed to do this, and thereby waived any right to its consideration on a subsequent appeal, which presents nothing for review except proceedings subsequent to the reversal.” Chicago, etc., R. Co. v. City of Bloomington, 182 Ind. 236, 238, 105 N. E. 561;Stevens v. Templeton, 174 Ind. 129, 131, 91 N. E. 563. See also, Cleveland, etc., R. Co. v. Starks, 58 Ind. App. 341, 347, 348, 106 N. E. 646.

Appellant next insists that the court erred in overruling its motion for judgment on the answers to interrogatories. The principles of law applicable to such question are set out in the former opinion, as is also an abstract of the pleadings which we here adopt.

Appellant's chief contention may well be stated in two propositions: First, the findings indicate a condition of contributory negligence, which bars the right to recover; and, second, the facts found “show that the alleged next of kin had no pecuniary interest in the life of the deceased, for the reason that none of them were dependent upon her.” (Our italics.)

[2] In support of the first proposition, appellant in effect contends, from the place decedent was when struck and from the length of time she was upon or near the track, as found by the answers to interrogatories, and her opportunity for seeing the approaching train, that in failing to see she was guilty of contributory negligence as a matter of law. Giving to appellant the benefit of a construction of the interrogatories and answers most favorable to it, which we are not required to do, they show upon this phase of the question in substance the following:

For ten years prior to her death decedent resided within from 60 to 80 feet of the crossing where she was killed. Water street ran east and west, and the railroad ran north and south, almost at right angles. The decedent lived west of the railroad. On December 15, 1908, between 6 and 7 o'clock in the evening, decedent and her daughter Mae left their home to go to the home of another daughter who lived east of the railroad. They walked together along the south side of Water street to a point about 4 feet west of the west rail of the railroad track, when the daughter left her mother and went back to decedent's home and closed two of the shutters. When the daughter left her, decedent was walking at an ordinary gait toward the railroad track. The daughter returned to a point within 3 to 5 feet of the west rail of the railroad track before the train entered Water street. After her daughter left her, decedent did not continue on in an easterly direction until she crossed the railroad track, and did not cross the railroad track near the southern line thereof. Decedent did not cross the track, and while she was on the east side thereof walked northwardly and about parallel with the track. She did not cross the track, and remained on the east side of the track until she was struck and injured.

There was a driveway on and along Water street, the center line of which coincided approximately with the center line of said street. This driveway was about 16 feet in width. There was a tile drain pipe beneath the driveway, east of the railroad track, which extended from north to south, the north end of which was within 8 feet of the sidewalk on the north side of said street. Decedent was north of the north end of the tile drain pipe when she was struck and injured. Decedent did not travel from the west to the east side of the railroad track, and thence to a point north of the tile drain, after her daughter left her, and before she was struck and injured. Water street was between 55 and 60 feet in width, including sidewalks. Decedent stopped before attempting to cross the railroad track, for the purpose of determining whether a train was approaching or not.

In answer to other interrogatories the jury find that there were embankments and trees which obstructed a full view of the railroad tracks to the north, and that there was a locomotive engine, with train, puffing, sounding its whistle, and ringing its bell on a siding or railroad south of decedent, when she started to walk northwardly and across said railroad track.

The rule contended for by appellant, that a person approaching a railroad crossing is bound to see what could have been seen and to hear what could have been heard, is not applicable to the circumstances shown to exist in this case. Dieckman v. Louisville, etc., Trac. Co., 46 Ind. App. 11, 16, 89 N. E. 909, 91 N. E. 179;Union Trac. Co., etc., v. Haworth, 115 N. E. 753; Lutz, Adm'r, v. Cleveland, etc., R. Co., 59 Ind. App. 16, 108 N. E. 886.

[3] As affecting the second proposition, the following interrogatories and answers are set out:

“Was not decedent's daughter, Mae Stierheim, living with her mother and dependent upon her for support, advice, and assistance at the time of her death? Answer. Yes.”

“Was decedent's son, Arthur Stierheim, living with his mother, and depending upon her for help, advice, and assistance, at the time of her death? Answer. Yes.”

“Was the deceased a widow? Answer. Yes.”

“Was Mae Stierheim between 24 and 25 years of age at the time of the death of the deceased? Answer. Yes.”

“Was Arthur D. Stierheim a man about 30 years of age at the time of his mother's death? Answer. Yes.”

“Were Walter A. Stierheim, Charles E. Stierheim, Bertha Henderson, and Tillie A. Marrow all surviving children of the deceased? Answer. Yes.”

“Was Walter A. Stierheim dependent upon his mother? Answer. No.”

“Was Charles E. Stierheim dependent upon his mother? Answer. No.”

“Was Bertha Henderson dependent upon her mother? Answer. No.”

“Was Tillie A. Marrow dependent upon her mother? Answer. No.”

“Considering the said Lydia Stierheim's age at the time of her death, the increased care and attention she would have required as she advanced in years, and her increasing disability for work, what was the actual pecuniary loss to her...