Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Lutz, 9,501

Docket Nº9,501
Citation116 N.E. 429, 64 Ind.App. 663
Case DateJune 08, 1917
CourtCourt of Appeals of Indiana

116 N.E. 429

64 Ind.App. 663

THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY
v.

LUTZ, ADMINISTRATOR

No. 9,501

Court of Appeals of Indiana

June 8, 1917


From Clark Circuit Court; James W. Fortune, Judge.

Action by Burdette C. Lutz, administrator of the estate of Lydia A. Steirheim, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Frank L. Littleton and M. Z. Stannard, for appellant.

H. W. Phipps and George H. D. Gibson, for appellee.

OPINION [116 N.E. 430]

[64 Ind.App. 665] IBACH, P. J.

Appellee recovered a judgment against appellant for $ 2,000 as damages for the killing of his decedent at a public street crossing in the town of Charlestown. Appellant 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, 4) the overruling of its motion for judgment on the answers to interrogatories, and for a new trial, respectively.

The first two assigned errors present no question. This is a second appeal. Lutz, Admr., v. Cleveland, etc., R. Co. (1914), 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 [64 Ind.App. 666] 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 (1914), 182 Ind. 236, 238, 105 N.E. 561; Stevens v. Templeton (1909), 174 Ind. 129, 131, 91 N.E. 563. See, also, Cleveland, etc., R. Co. v. Starks (1914), 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, secondly, 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.)

In support of the first proposition, appellant in effect contends that--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 owing to her opportunity for seeing the approaching train--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: [116 N.E. 431] For ten years prior to her death decedent resided within from sixty to eighty feet of the crossing where she was [64 Ind.App. 667] 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 six and seven 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 four 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 three to five 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 casterly 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 walk northwardly and about parallel with the track. She did not cross the track and remain 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 sixteen 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 eight 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 [64 Ind.App. 668] between fifty-five and sixty feet in width, including sidewalks. Decedent stopped before attempting to cross the railroad track, for the purpose of determining whether a train was approaching.

In answer to other interrogatories the jury found that there were embankments and trees which obstructed a full view of the railroad tracks to the north, and that there was a train on a siding or railroad track south of decedent, the locomotive engine of which was puffing, sounding its whistle and ringing its bell 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., Traction Co. (1909), 46 Ind.App. 11, 16, 89 N.E. 909, 91 N.E. 179; Union Traction Co., etc. v. Haworth (1918), 187 Ind. 451, 115 N.E. 753; Lutz, Admr., v. Cleveland, etc., R. Co., supra.

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...

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