Freitag v. Chicago Junction Ry. Co.

• Decision Date: 27 October 1909
• Docket Number: No. 6,228.,6,228.
• Citation: 46 Ind.App. 491,89 N.E. 501
• Parties: FREITAG v. CHICAGO JUNCTION RY. CO.
• Court: Indiana Appellate Court

46 Ind.App. 491

89 N.E. 501

FREITAG

v.CHICAGO JUNCTION RY. CO.

No. 6,228.¹

Appellate Court of Indiana, Division No. 1.

Oct. 27, 1909.

Appeal from Superior Court, La Porte County; C. H. Truesdell, Judge.

Action by Tillie Freitag against the Chicago Junction Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.Wellman & House, V. S. Reiter, and L. L. Bomberger, for appellant. Winston, Payne & Strawn, John B. Payne, John B. Peterson, and John D. Black, for appellee.

WATSON, J.

This was an action to recover damages for personal injuries. The complaint was in eight paragraphs. Appellee filed a general denial. During the trial appellant, by leave of court, filed a ninth paragraph of complaint, and dismissed the second, third, and fourth paragraphs. Appellee demurred to said ninth paragraph, but the demurrer was overruled, and a general denial was then filed. The jury, upon a trial of the cause, returned a verdict for appellant in the sum of $25,000, and also answers to interrogatories submitted by appellee. Appellant moved for judgment on the verdict, but the motion was overruled. Appellee moved for judgment on the interrogatories, which motion was sustained, and judgment was rendered thereon. The errors assigned each pertain to the judgment rendered on the interrogatories, and may be considered together.

The facts specially found by the jury in the answers to interrogatories were as follows, to wit:

“(1) Was there, at the time of the plaintiff's injury, a viaduct or bridge over the railroad tracks, at the crossing near which the plaintiff was injured? Answer: Yes.

“(2) Had said viaduct been there for from 9 to 12 months before the date of the plaintiff's injury? Answer: Yes.

“(3) Was there, at the time of the plaintiff's injury, and had there been for from 9 to 12 months previous thereto, conspicuous signs at each of the three entrances to the said viaduct at the railroad crossing, painted on boards, the boards being 61 inches in length and 47 inches in width, and the large letters on said signs some 7 inches high containing the following words: ‘Dangerous crossing, walk over viaduct, crossing on tracks forbidden’? Answer: Yes.

“(4) Had the plaintiff seen said signs before the day of the accident? Answer: Yes.

“(5) At the time the plaintiff approached said crossing did she see the steps or entrance to the viaduct? Answer: Yes.

“(6) At the time, and immediately before the plaintiff's injury, did some other persons pass over said viaduct in safety? Answer: No; not before, but immediately following.

“(7) At the time the plaintiff approached said railroad crossing, could she have passed over said railroad crossing in safety by the use of said viaduct if she had used the said viaduct instead of attempting to cross over the tracks at grade? Answer: No; owing to the structure being covered with ice, and the wind blowing (72) seventy-two miles per hour.

“(8) Is it not a fact that the plaintiff had used the said viaduct before the time of her injury? Answer: Yes; once.

“(9) When the plaintiff, on her way home, reached the railroad tracks, did she find the railroad crossing blocked? Answer: No; only partially.

“(11) At the time the plaintiff walked out upon the said railroad tracks was it very dark? Answer: Yes.

“(12) At the time the plaintiff undertook to pass over the said railroad tracks did she know that the said tracks were in frequent use by the switching crew of the defendant, in switching cars backward and forward, at the place where she walked? Answer: Yes.

“(13) Did the plaintiff know, when she walked out on to said tracks, that by reason of the darkness and the probable movement of engines or cars on said tracks, that the place where she walked was a place of danger? Answer: Yes.

“(14) Was the place where plaintiff was injured the private property of the defendant? Answer: Yes.”

The rule is well established that the general verdict should control the judgment, unless such a material conflict is shown to exist between the general verdict and the facts specially found that such conflict cannot be reconciled by taking into consideration any other facts provable under the issues. Smith v. Michigan Central Railroad Co., 35 Ind. App. 188, 197, 73 N. E. 928;Union Traction Co. v. Barnett, 31 Ind. App. 467, 67 N. E. 205;Robinson v. Etter, 30 Ind. App. 253, 63 N. E. 767;Boyd v. Schott, 29 Ind. App. 74, 63 N. E. 871;Chicago Railway Co. v. Leachman, 161 Ind. 512, 69 N. E. 253;Clear Creek Co. v. Dearmin, 160 Ind. 162, 66 N. E. 609;Johnson v. Gebhauer, 159 Ind. 271, 64 N. E. 855.

The averments of the first paragraph of complaint were, in part, as follows: “That long prior to the 27th of December, 1904, the Union Stockyards & Transit Company owned and operated a stockyards in the city of Chicago, Ill., upon which were located railroad yards, tracks, and stockyards pertaining to the slaughtering establishments; that more than 20,000 persons were daily employed in and about the stockyards and the various establishments therein; that one of the slaughtering establishments there was owned and operated by Armour & Co., and they used the stockyards under and by virtue of an agreement with the Union Stockyards & Transit Company for a valuable consideration, the amount and character of which appellant did not know; that the Union Stockyards & Transit Company also kept and maintained a large number of railroad tracks, locomotive engines, and cars propelled by steam, which ran into and through the stockyards, and were used in connection with the stockyards for the mutual accommodation, benefit, and profit of the concerns therein, including Armour & Co., and defendant on said date, and long prior thereto, ran its locomotive engines and cars over the tracks of the Stockyards & Transit Company in and about the stockyards to and among the various plants and establishments therein; that on said date, and long prior thereto, the Union Stockyards & Transit Company kept and maintained for travel certain avenues, streets, footpaths, and ways in and about the stockyards for the use of the persons, firms, and corporations, including Armour & Co., engaged in business therein, and for the use of their agents, servants, and employés to pass and repass in going to and from different places of work and business in the stockyards; that one of these avenues was designated as Transit avenue, which crossed at grade or level certain of said railroad tracks; that Transit avenue extended in a northerly and southerly direction, and the railroad tracks were three in number, parallel to one another, running in an easterly and westerly direction; that among the footpaths or ways above referred to there was on said date, and long prior thereto, one which left said Transit avenue immediately south of the intersection thereof with the said railway tracks, and ran in a northwesterly direction across the railway tracks, and across Thirty-Ninth street, and was kept and maintained by the Union Stockyards & Transit Company during said time for the use of pedestrians having business in and about the stockyards, or who were employed therein by Armour & Co. or other persons; that the location and the use of the streets, avenues, footpaths, and ways was well known to the defendant and its employés using the railway tracks crossing the same on and prior to said date; that on said date appellant was in the employ of Armour & Co. at its place of business in the stockyards, and left her employment on the night of that day, passed along Transit avenue in a northerly direction upon the path leading therefrom as aforesaid, in a northwesterly direction towards Thirty-Ninth street across said railway tracks; that while she was upon said path and the northerly track of the three tracks then and there running east and west, the appellee carelessly and negligently backed a train of freight cars down upon and against her, without ringing a bell, blowing a whistle, or giving other signal, and without displaying any lights or other markers to indicate its presence or approach; that at the time there was a high wind and violent snowstorm, and the night was very dark, so that appellant could not see nor hear the approach of the train of cars which appellee backed upon her, and did not know of its approach until it was too late to escape therefrom; that the appellee then and there ran the said train over and crushed, bruised, and wounded the plaintiff, so that it became necessary to amputate both of her legs, etc., and demands judgment for $100,000.” The theory of this paragraph of complaint is that the ground and tracks where the injury occurred were owned by the Union Stockyards & Transit Company, that both appellant and appellee were in said yards by the permission and invitation of the Stockyards Company, and that appellant was injured by and through negligent acts of appellee. The jury, however, in its special finding of facts found that the injury occurred on the private property of appellee. On no theory can this finding be reconciled with any proofs which might be adduced under the allegations of ownership contained in the first paragraph of complaint. The answer to interrogatory No. 14, which says the place where plaintiff was...