Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Houghland

• Decision Date: 30 June 1908
• Docket Number: 6,363
• Citation: 85 N.E. 369,44 Ind.App. 73
• Parties: CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HOUGHLAND, ADMINISTRATOR
• Court: Indiana Appellate Court

85 N.E. 369

44 Ind.App. 73

CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HOUGHLAND, ADMINISTRATOR

No. 6,363

Court of Appeals of Indiana

June 30, 1908

Rehearing denied June 4, 1909, Reported at: 44 Ind.App. 73 at 82.

From Rush Circuit Court; Will M. Sparks, Judge.

Action by Charles H. Houghland, as administrator of the estate of Jeremiah Matthews, deceased. From a judgment for plaintiff defendant appeals.

Reversed.

A. B Everhard, C. E. Cowgill, L. J. Hackney and T. L. Stitt, for appellant.

Wymond J. Beckett and Innis & Morgan, for appellee.

RABB, C. J. Myers, P. J., Comstock, Watson and Hadley, JJ., concur. Roby, J., absent.

OPINION

RABB, C. J.

This action was brought to recover damages for the death of appellee's decedent, alleged to have been caused by the negligence of the appellant. Appellant's demurrer to the complaint was overruled and an exception reserved. An answer of general denial was filed, a jury trial had, resulting in a general verdict in favor of appellee, assessing damages at $ 5,000. Answers to interrogatories submitted to the jury were returned with the general verdict. Appellant's motions for a judgment in its favor upon the answers to the interrogatories and for a new trial were severally overruled, and a judgment rendered upon the general verdict in favor of appellee.

The errors assigned and urged here for reversal, are the rulings of the court below on appellant's demurrer to the complaint, and on its motions for judgment in its favor on the interrogatories and for a new trial.

It is insisted that the complaint is insufficient, because it fails to show that the alleged negligent acts charged against the appellant were the proximate cause of the injury complained of. The negligence charged in the complaint was as follows: "Said defendant negligently ran one of its locomotives against said vehicle in which this plaintiff's decedent was riding at the time, and negligently crushed and broke said vehicle, and negligently threw this plaintiff's decedent out of said vehicle, and negligently thereby inflicted mortal wounds. * * * And plaintiff says that defendant, as it approached said crossing, negligently failed to blow the whistle when eighty rods from said crossing, and negligently failed to ring the bell continuously as it approached said crossing, and negligently ran said locomotive and one car attached thereto at a high and dangerous rate of speed, to wit, sixty miles an hour, while approaching and running onto said crossing, and negligently failed to give any signal or warning, or to take any precaution whatever to protect people upon said crossing, or to guard against accidents at said crossing, but negligently ran said car against said buggy in which the plaintiff's decedent was riding, as aforesaid, and negligently killed the plaintiff's decedent, as aforesaid."

While this complaint could not be commended as a model pleading, and is certainly redundant in charges of negligence where they do not properly belong, yet we think it sufficiently avers that the act of the appellant in running its locomotive at the rate of sixty miles an hour across a much-frequented public highway, without giving any signal or warning of its approach to the highway, is a charge of negligence, and that it sufficiently appears that it was the act of the appellant in thus running its train at such a high rate of speed over the public highway, without such warning, that resulted in the injury and death of appellee's decedent. It is averred clearly that it was this train that was thus run that struck the appellee's intestate at the crossing and killed him. We think the complaint sufficient to withstand a demurrer.

Nor can we agree with appellant's contention that error intervened in the overruling of appellant's motion for a judgment in its favor upon the answers to the interrogatories notwithstanding the general verdict. The answers to the interrogatories are in conflict with one another, but are not in irreconcilable conflict with the general verdict.

Appellant's motion for a new trial calls in question the sufficiency of the evidence to sustain the verdict, certain instructions given and refused, the action of the court in admitting certain evidence, and error in the assessment of damages.

Instructions twenty-two and twenty-six, asked for by the appellant, withdrew from the consideration of the jury the question as to whether Clayton Matthews, who was driving the horse at the time of the accident, was acting in that matter as the agent of the deceased, and required the jury to impute the negligence of said Clayton to the deceased. No reversible error intervened in refusing these instructions. The court correctly instructed the jury on the subject of imputed negligence. The jury found in favor of appellant in the answers to special interrogatories on the question of fact, and no harm could have resulted to the appellant from the refusal to give these instructions asked for.

The court refused to instruct the jury that if there were obstacles preventing the deceased from seeing the approaching train in time to avoid the collision, and he heard the whistle when he was from two hundred and thirty to two hundred and fifty feet from the track, then it was the duty of the deceased to stop and listen for the approach of the train when within fifty feet of the track, before undertaking to cross the same; and if by so doing he could have heard the train and avoided the accident, then he would be guilty of negligence in undertaking to cross without so stopping to listen.

The refusal of the court to give this instruction presents the same question that is presented by the reason assigned in appellant's motion for a new trial--that the evidence is insufficient to support the verdict. There is evidence tending to show that, on account of the dense fog prevailing at the time, the decedent was unable to see the train that struck him. There is no contradiction whatever about the fact that he did not stop and listen for the approach of the train at any time after he left the hardware store, which was 250 feet from the crossing, and that, within one minute of the time of the collision, and just as he was leaving the hardware store, he heard the whistle of the engine that struck him. It is equally clear, from the uncontradicted evidence of all the witnesses who testified on the subject, that the decedent could have distinctly heard the sound made by the approaching train had he stopped and listened for it at any point within fifty feet of the track.

The evidence is uncontradicted that, at the time the accident occurred, the decedent was fifty-five years of age, of ordinarily good senses of sight and hearing; that he resided in the country a few miles east of the town of Milroy, which was a small village on appellant's road; that on the morning of the day the accident occurred he and his son Clayton, who was nineteen years of age and in full...