Cleveland v. Rumsey
| Decision Date | 13 February 1913 |
| Docket Number | No. 7,804.,7,804. |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. RUMSEY. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Boone County; Willett H. Parr, Judge.
Action by George Z. Rumsey against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.Leonard J. Hockney, of Cincinnati, Frank L. Littleton, of Indianapolis, Samuel M. Rolston, of Lebanon, and John W. Kern, of Indianapolis, for appellant. Wymond J. Beckett, of Indianapolis, and A. J. Shelby, of Lebanon, for appellee.
Appellee brought action against appellant for damages for personal injuries, and recovered judgment. Appellant assigns as error that the complaint does not state facts sufficient to constitute a cause of action, and that the court erred in overruling appellant's motion for judgment on answers to interrogatories.
[1] A complaint, attacked for the first time on appeal, is held good if sufficient to bar another action on the same state of facts. Cleveland, etc., R. Co. v. Beard (1913) 100 N. E. 392, and cases cited.
[2] The present complaint, in substance, alleges that appellant was on September 26, 1908, operating a railway across Liberty street, a public highway in the city of Indianapolis; that plaintiff on said day was riding in an open spring wagon drawn by a gentle horse, and was driving south in said Liberty street, and that the buildings on either side of said street extended out within about two or four feet of said railway, and that at the point where said street crosses said tracks the line of railway upon which said defendant operates its said trains curves to the northwest around said buildings on the east side of said Liberty street; that plaintiff approached said railway crossing with care and caution, and before driving onto said tracks stopped his horse and looked and listened in both directions for approaching trains and that he continued to look and listen for approaching trains as he drove onto said railway tracks, and that he did not hear or see defendant's train approaching said crossing from the east; that he drove upon said track with due care and caution and with the exercise of reasonable care looking and listening for trains at all times, but that when his said horse had passed onto said track on which defendant ran its said trains, and when his said vehicle in which he was riding was upon said track, defendant negligently ran one of its locomotive engines attached to a passenger train against the plaintiff's said horse and vehicle, and negligently overturned said vehicle and threw plaintiff out of said vehicle upon said track and ground, and thereby negligently injured plaintiff without his fault. It is further averred that defendant negligently approached and ran upon said crossing with its passenger train from the east at a high and dangerous rate of speed at the rate of 20 to 30 miles per hour, and that defendant ran its locomotive at said high and dangerous rate of speed toward and upon said crossing and against plaintiff as aforesaid without giving any signal of its approach by whistle or bell, all in violation of an ordinance of the city of Indianapolis, which ordinance, making it unlawful to run an engine at a speed greater than four miles an hour, or without ringing the bell, is set out in full in the complaint. The only objection urged to the sufficiency of this complaint is that it affirmatively shows that appellee was guilty of contributory negligence. We do not think this objection has any merit. It is averred that the plaintiff used due care and caution, that he stopped and looked and listened before he drove onto the track, and continued to look and listen as he drove onto the tracks, and that he did not hear or see the train approaching.
The jury found the following facts in answer to interrogatories: The plaintiff received physical injuries on September 26, 1908, by reason of one of defendant's engines attached to a passenger train running into a one-horse wagon which plaintiff was driving across railroad tracks in front of said engine at a point where said tracks cross Liberty street, in the city of Indianapolis. This street ran north and south, and was crossed by four railroad tracks at or near the place where plaintiff was injured. The engine and passenger train which collided with plaintiff's wagon was running on the track farthest to the south, which was known as the west-bound main track. The distance from the north rail of the track on which plaintiff was injured to the south rail of the track farthest north and nearest Washington street was about 30 feet. Plaintiff's place of business at the time of the injury was within a few hundred feet of the place where he was injured. He had frequently theretofore driven over the tracks at that point, and on said date was familiar with said crossing and with the buildings and structures adjacent to the same, and knew that engines, trains and cuts of cars frequently passed backward and forward over said crossing, and knew that the crossing was a dangerous one, and that the crossing of said tracks with a vehicle was attended by danger. He was possessed of good hearing and eyesight. On the date named he drove south from Washington street on Liberty street to the tracks before mentioned. He was driving a...
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