Hummel v. New York Cent. R. Co.

• Decision Date: 04 June 1946
• Docket Number: 17487.
• Citation: 66 N.E.2d 901,117 Ind.App. 22
• Parties: HUMMEL v. NEW YORK CENT. R. CO. et al.
• Court: Indiana Appellate Court

66 N.E.2d 901

117 Ind.App. 22

HUMMEL v. NEW YORK CENT. R. CO. et al.

No. 17487.

Appellate Court of Indiana, in Banc.

June 4, 1946

Craig & Craig, of Brazil, and Hubert R Criss, of Terre Haute, for appellant.

Beasley O'Brien & Beasley, of Terre Haute, for appellees.

DRAPER Judge.

The appellant brought this action against the appellees to recover for the alleged wrongful death of one Samuel U Hummel. The appellant introduced her evidence and rested. The appellees thereupon rested without offering evidence. On their motion the court directed a verdict in favor of appellees (defendants) and the correctness of that ruling is challenged here.

The evidence discloses that at a point in Vigo County where the appellee company's double track railroad ran in a northeasterly and southwesterly direction, it was interested by a public highway known as the Haythorne Road, which ran in an easterly and westerly direction. Trains using the easterly track travelled in a northeasterly direction and those using the westerly track travelled in a southwesterly direction. At about 11:35 a. m. on a day described by one witness as 'gloomy' and by another as 'clear,' Hummel was driving an automobile westwardly on Haythorne Road approaching the tracks. When a freight train going northeast cleared the crossing, Hummel proceeded onto the tracks and was struck and instantly killed by a passenger train going southwest on the other track at about 75 miles per hour.

The appellant first asserts that the evidence was sufficient to show negligence on the part of the appellees in failing to whistle for the crossing.

The appellant first called the appellee Driggs, engineer of the train. He testified that the bell, which rings automatically, was ringing from the time he left Indianapolis, and that he properly whistled for the crossing.

The appellant then called one Mary Callecod, who had lived very near the crossing for thirty years. She testified she was in the room farthest from the track and heard a crash. She ran out and saw nothing but dust. A truck coming from the west on Haythorne Road pulled up, the driver jumped out, exclaimed 'You can't say that train didn't whistle,' and took off down the tracks toward the wreckage, the witness following him. She further testified she did not hear the whistle; she never heard the whistle; she had gotten accustomed to trains and never noticed them; she was accustomed to it and she never noticed this train whistle; it could have whistled; she did not mean to say it didn't whistle; it could have whistled because she just didn't notice them. The truck driver did not testify on behalf of the appellant.

In considering the question presented we may not weigh the testimony of one witness against the conflicting testimony of another, nor may we weigh conflicting portions of the testimony of the same witness. If the same witness makes contradictory assertions, we will not undertake to determine which of the assertions are true, that being a question for the jury. All facts which the evidence tends to prove and all inferences reasonably deductible therefrom must be accepted as true against the moving party. Lincoln Nat. Bank & Trust Co. v. Parker, 1941, 110 Ind.App. 1, 34 N.E.2d 190, 37 N.E.2d 5; Snider v. Truex, 1943, 222 Ind. 18, 51 N.E.2d 477.

Yet while we will not weigh it, the evidence that will support a finding must be substantial evidence. It must be evidence which has probative value. Hirst v. Chevrolet Muncie Division, etc., 1941, 110 Ind.App. 22, 33 N.E.2d 773, 37 N.E.2d 3.

It...