Fisher v. Louisville, New Albany And Chicago Railway Co.
| Decision Date | 12 January 1897 |
| Docket Number | 17,998 |
| Citation | 45 N.E. 689,146 Ind. 558 |
| Parties | Fisher, Administrator, v. Louisville, New Albany and Chicago Railway Company |
| Court | Indiana Supreme Court |
From the Newton Circuit Court.
Affirmed.
S. P Thompson and D. J. Thompson, for appellant.
E. C Field, W. S. Kinnan and Cummings & Darroch, for appellee.
Appellant brought this action to recover damages for the death of Benjamin Fisher, an employe of appellee, who was killed by one of appellee's trains.
The complaint is in two paragraphs. The first paragraph alleges that the death was caused by the negligence of appellee and without the fault of the decedent.
The second paragraph charges that appellee willfully and purposely killed the decedent. The jury returned a special verdict, and appellant moved for a judgment in his favor, which was overruled and judgment rendered in favor of appellee.
The special verdict, so far as necessary to the determination of the questions presented, is substantially as follows: On July 19, 1895, Benjamin F. Fisher was, and had been, in the service of appellee as a section man for about three months, and while in such service was struck and killed by a locomotive owned and operated by appellee, and which was attached to an extra freight train not running on any schedule time and following about one mile behind the regular local freight train, which had passed the decedent about five minutes before he was killed. That a high wind was blowing from the northwest to the southeast at the time. The deceased was killed about half way between the village of Surrey and the first public highway southeast of said village. The railroad crosses two public highways, about one mile south of said village, one about eighty rods from the other; the track for a distance of about three-quarters of a mile to the southeast of where the deceased was killed, was straight and unobstructed in view from the cab of the locomotive as it approached the place where the decedent was killed. Appellee's engineer and fireman could have seen decedent at work upon said railroad in approaching him for the distance of at least one-half a mile. The engineer in charge of the locomotive drawing the extra freight train did not give any signal at the highway crossing first south and about one-half mile from where the decedent was at work, or give any warning as the train approached the decedent. The deceased would not have heard the whistle if sounded at said highway crossing, but would have heard the danger signal as the extra freight train approached him from the southeast, if it had been sounded. The train was going at about twelve to fifteen miles per hour when the decedent was killed. The deceased was a man about forty-one years of age, with his eyesight good, and was in the full possession of his faculties. He could have seen the train approaching for about one mile if he had looked, and could have heard the noise of the approaching train in time to have avoided danger if he had listened. The special verdict states that there was no evidence as to what the decedent was doing when he was killed, whether he looked or listened, or as to whether he saw and heard the train approaching in time to avoid it or not.
To entitle appellant to judgment in his favor upon the special verdict, under the issues joined, it is essential that the facts found should show that the death of Fisher was caused by the negligence of the appellee, and without any fault on the part of said decedent, or that he was willfully killed by the appellee. O'Neal v. Chicago, etc., R. W. Co., 132 Ind. 110.
In determining whether the facts found are sufficient to entitle the person having the burden of proof to a judgment this court can only consider the facts properly found, disregarding evidentiary facts, legal conclusions and matters not within the issues; and when any fact material to any issue is not set forth, the presumption is that there was not evidence sufficient to establish such fact, and the same is treated as found against the party having the burden of proof as to such fact. Nothing can be added by inference or intendment. Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Indiana, etc., R. W. Co. v. Barnhart, 115 Ind. 399, 16 N.E. 121, and cases cited; Cook v. McNaughton, 128 Ind. 410, 24 N.E. 361, and cases cited; Town of Freedom v. Norris, 128 Ind. 377, 27 N.E. 869; Louisville, etc., R. W. Co. v. Miller, 141 Ind. 533, 37 N.E. 343.
There are no facts showing that the appellant's intestate was in the exercise of...
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Fisher v. Louisville, N.A.&C. Ry. Co.
... ... Z. Wiley, Judge.Action by Henry Fisher against the Louisville, New Albany & Chicago Railway Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.[45 ... ...