Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Cyr

• Decision Date: 06 January 1909
• Docket Number: 6,307
• Citation: 86 N.E. 868,43 Ind.App. 19
• Court: Indiana Appellate Court
• Parties: CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. CYR

86 N.E. 868

43 Ind.App. 19

CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. CYR

No. 6,307

Court of Appeals of Indiana

January 6, 1909

From Benton Circuit Court; Joseph M. Rabb, Judge.

Action by Zephyr Cyr against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

C. M Snyder, for appellant.

Burton B. Berry, for appellee.

COMSTOCK P. J. Rabb, J., not participating.

OPINION

COMSTOCK, P. J.

Appellee sued the appellant to recover damages to appellee's horse and buggy occasioned by being struck by appellant's train on a public highway crossing in Benton county, Indiana.

A demurrer for want of facts was overruled, the cause put at issue by a denial and a trial had, resulting in a verdict and judgment for appellee for $ 188. The jury returned with their verdict answers to interrogatories. Appellant's motions for judgment on the answers to the interrogatories and for a new trial were overruled.

Of the specifications of error assigned, appellant discusses the first, second and sixth. The others are deemed waived.

Said first and second specifications challenge the sufficiency of the complaint. Against the sufficiency of the complaint, it is urged that, although it alleges that appellee was free from fault contributing to the accident, the specific facts alleged show that he was guilty of contributory negligence.

When the specific allegations of facts contradict the general allegations of fact, the specific allegations control.

Conceding the legal proposition, we can determine whether appellant's claim is well taken, by setting out the parts of the complaint pertinent to this question. The complaint shows that on the day of the accident the plaintiff was driving his horse toward appellant's railway track extending southeast and northwest, which crossed the public highway, making an acute angle with said highway; that as plaintiff approached said crossing he checked his horse, and carefully looked in both directions along said track and listened for the approach of a train, and continued to look and listen for any train until he drove upon said defendant's right of way; that when he drove upon the right of way at a point where his horse's head was within a few feet of the track, and as soon as he was past an embankment which prevented him from seeing a train coming from the northwest, he looked and saw a passenger-train, within seventy-five or one hundred feet of the crossing, rapidly approaching from the northwest; that at said point where plaintiff saw said train, and was aware of it for the first time, his horse, which was reasonably gentle, became frightened and unmanageable on account of the near approach of said train, the rapidity of its approach, and because the locomotive whistle was carelessly and negligently sounded, by those in charge of said locomotive, when within seventy feet of said crossing, and which was so sounded after plaintiff had discovered the approach of the train; that, as a consequence thereof, plaintiff was unable to stop his horse before it reached said railway track, although he endeavored to his utmost so to do; that the defendant, in approaching said crossing, and when not less than eighty nor more than one hundred rods from said crossing, negligently and carelessly failed and omitted to sound the whistle on said locomotive engine three times, and carelessly, negligently and unlawfully omitted to ring the bell attached to said engine continuously for not less than eighty rods nor more than one hundred rods from said crossing, until said engine had fully passed said crossing; that the defendant, through its servants operating said train, unlawfully failed and neglected so to sound the whistle of said engine, and ring the bell attached to the same, for another public crossing eighty rods to the northwest of the crossing toward which plaintiff was traveling; that, by reason of an embankment, bushes, trees and other obstructions between said highway, over which plaintiff was traveling, and the said railway track on the north side thereof, plaintiff did not see and was unable to see the approach of said train, although he diligently looked before passing onto the said right of way; that plaintiff diligently listened for the approach of a train, and did not know of its approach until he was on the right of way, for the reason that said defendant had negligently and carelessly failed to give the statutory signals of an approaching train, as hereinbefore set forth, and that he did...