Davis v. Welch

• Decision Date: 26 June 1923
• Docket Number: No. 11630.,11630.
• Citation: 80 Ind.App. 334,140 N.E. 439
• Parties: DAVIS, Agent, etc., v. WELCH.
• Court: Indiana Appellate Court

80 Ind.App. 334

140 N.E. 439

DAVIS, Agent, etc.,

v.WELCH.^*

No. 11630.

Appellate Court of Indiana, Division No. 1.

June 26, 1923.

Appeal from Circuit Court, Floyd County; John M. Paris, Judge,

Action by Mary C. Welch, administratrix, etc., against James C. Davis, Agent, etc. Judgment for plaintiff, and defendant appeals. Affirmed.

C. L. & H. E. Jewett and Walter V. Bulleit, all of New Albany, for appellant.

Laurent A. Douglass, of Jeffersonville, for appellee.

ENLOE, P. J.

This was an action by the appellee against the appellants to recover damages for the death of her husband, who was killed by reason of being struck at a public highway crossing by a train on the Baltimore & Ohio Railroad. The complaint, which was in three paragraphs, was answered by general denials. The cause was submitted to a jury, which returned its verdict in favor of the appellee. The error assigned is the overruling of the motion for a new trial.

The acts of negligence charged in the first paragraph of the complaint were: (a) Failure to sound the whistle for said crossing; and (b) failure to ring the bell on said locomotive as the train approached said crossing. The negligence charged in the second paragraph of the complaint was the failure to stop said train after the engineer discovered the deceased on the track of said railroad and in a position of peril. The negligence charged in the third paragraph was, in addition to the failure to ring the bell or sound the whistle, the allowing of said crossing to become and remain out of repair, thereby rendering the use of said crossing “difficult, unsafe, and dangerous, and difficult to cross with vehicles” thereby delaying the reasonably speedy crossing thereof.

[1] Counsel for the appellants, in their brief filed herein, say:

“We present this case to the court solely upon the evidence. Aside from the question as to whether the whistle on the locomotive was blown, there was no evidence whatever to sustain the verdict. We candidly state *** that the sufficiency of the evidence, or rather its insufficiency, is the sole matter to be considered.”

If there was any competent evidence tending to establish any one of several acts of negligence charged in the complaint, and if the deceased came to his death as the proximate result of such act of negligence, then the verdict of the jury must stand.

[2] One of the acts of negligence charged was in reference to the condition in which said highway crossing was maintained. In...