Cleveland v. Wuest

• Decision Date: 05 February 1908
• Docket Number: No. 6,210.,6,210.
• Citation: 41 Ind.App. 210,83 N.E. 620
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. WUEST.

41 Ind.App. 210

83 N.E. 620

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

v.WUEST.

No. 6,210.

Appellate Court of Indiana, Division No. 2.

Feb. 5, 1908.

Appeal from Circuit Court, Ripley County; Willard New, Judge.

Action by William Wuest, by his next friend, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See 82 N. E. 986.

L. J. Hackney, Jno. A. Cravens, and Thos. A. Cravens, for appellant. John H. Connelly, for appellee.

COMSTOCK, J.

Appellee recovered judgment below for $2,000 for injuries received by him at a highway crossing, over the tracks of appellant railroad company, by reason of the appellant's alleged negligence. The issues were formed on the amended second paragraph of complaint and the general denial to same. Appellant's motions for judgment on the answers of the jury to interrogatories, and for a new trial, were overruled.

The errors assigned are the overruling of the demurrer to the amended second paragraph of the complaint to appellant's motion for judgment in its favor on the answers to interrogatories notwithstanding the general verdict, and overruling the appellant's motion for a new trial. Said paragraph of complaint alleges that on the 28th day of October, 1905, William Wuest was driving a team of horses, hitched to a wagon loaded with corn, on and over Fitch avenue, it being a street in the town of Sunman, Ind., approaching the defendant's railroad track, crossing said avenue from the south; that as he approached said crossing and drove upon the same one of defendant's freight trains was standing on the south main track east of Fitch avenue, and with the west end of the caboose standing so as to obstruct part of said crossing and his view of the north main track east of said avenue; that defendant had carelessly and negligently placed said caboose in said position, and carelessly and negligently ran one of its passenger trains over said crossing from the east at an extraordinary rate of speed, 65 miles an hour, and carelessly and negligently failed to give plaintiff any notice of said passenger train; that on account of said careless act and omission of the defendant he was injured without any fault on his part; that he suffered great pain in body and mind, and has been permanently injured. The complaint also sets out in detail the location and the condition of the crossing, and the number of tracks and switches at said station. No objection is pointed out to the complaint, nor is its sufficiency discussed. The first specification of error is therefore waived. The jury returned with their general verdict answers to 112 interrogatories. A part of these answers do not support the general verdict, others support it very strongly. All considered, they are not in irreconcilable conflict with the verdict, and appellant's motion for judgment thereon was properly overruled.

In the appellant's points and authorities it is said that the seventh, fourteenth, and eighteenth instructions, and each of them, given to the jury, is erroneous, but reference is not made to the seventh and fourteenth in the argument, and we conclude that as to them error is not seriously claimed, and we deem it only necessary to say that the point is not well taken. Said eighteenth instruction is as follows: “As the plaintiff drove along said avenue, approaching said crossing, it was his duty to realize and have in mind that he was approaching a place of danger, to be on the alert and use his sense of sight, looking both ways, and use his sense of hearing, and, if necessary, to stop, look both ways, and listen to ascertain for himself whether or not a train was approaching, and whether or not he could safely cross the tracks. If his view was obstructed so that he could not see to the east, then it was his duty to all the more carefully use his sense of hearing to look out and listen for any and all warnings that would notify him of the approaching train, and for the purpose of determining whether he could cross the tracks. The law says it was his duty to use care and caution in proportion to the known danger. The law required him to use that degree of care and caution that a person similar to him, of ordinary prudence, would be presumed to use under similar circumstances. If he failed to do this, and that failure contributed in the slightest degree to the injury complained of, then he cannot recover in this action, no matter how careless or negligent the defendant may have been.” It is argued that this instruction was “improper, in that it placed this appellee in a class by himself, and informed the jury that he was only bound to use the diligence that a boy of his...