Korrady v. Lake Shore & M.S. Ry. Co.

• Decision Date: 16 January 1892
• Citation: 131 Ind. 261,29 N.E. 1069
• Parties: KORRADY v. LAKE SHORE & M. S. RY. CO.
• Court: Indiana Supreme Court

131 Ind. 261

29 N.E. 1069

KORRADY

v.LAKE SHORE & M. S. RY. CO.¹

Supreme Court of Indiana.

Jan. 16, 1892.

Appeal from circuit court, Elkhart county; JAMES D. OSBORNE, Judge.

Action by Catherine Korrady, administratrix, against the Lake Shore & Michigan Southern Railway Company, to recover damages for the negligent killing of plaintiff's intestate. From a judgment for defendant, plaintiff appeals. Affirmed.

Henry C. Dodge, for appellant. John H. Baker, ( Geo. C. Greene and O. G. Getzen-Danner, of counsel,) for appellee.

ELLIOTT, C. J.

The appellee's contention, that the complaint is bad because it does not specifically show that actual damages were sustained by the widow and infant children of the appellant's intestate, cannot prevail. Where a complaint charges a railroad company with wrongfully killing a person, shows that the person so killed was free from contributory fault, and that he left a widow and infant children surviving him, a cause of action is stated, although it is not directly alleged that the surviving kinfolks sustained actual damages. The legal presumption is that infant children are entitled to the benefit of the father's services, and that the wife is entitled to the benefit of the services and assistance of her husband, and that such services are of value to her and her children. Railway Co. v. Buck, 116 Ind. 566, 19 N. E. Rep. 453; Board v. Legg, 93 Ind. 523;Clore v. McIntire, 120 Ind. 262-264, 22 N. E. Rep. 128. This presumption may possibly not extend so far as to entitle a plaintiff to recover actual or substantial damages without evidence, but it does prevail to save a complaint from overthrow where, as here, its averments are confessed by demurrer. The amount of damages that may be recovered depends, to be sure, upon the evidence; but, where the intestate leaves a widow and infant children, the implication of law is that they sustained some injury which the wrong doer must compensate in damages. It has long been the rule that if a complaint shows that the plaintiff is entitled to some damages or to some relief, although not so much or so great as that demanded, it will repel a demurrer.

It has likewise long been the established rule that if the facts are undisputed, and one inference only can be drawn from them, the question whether there is or is not negligence becomes one of law. Rogers v. Leyden, 127 Ind. 50, 26 N. E. Rep. 210; Board v. Chipps, 29 N. E. Rep. 1066, (Jan. 15, 1892,) and cases cited. The principle is the same whether the question concerns the negligence of the plaintiff or the negligence of the defendant. The principle stated makes it the duty of the court, where the facts covering the question of contributory negligence are fully stated in answers to interrogatories, or in a special verdict, to decide the question as one of law in cases where the facts lead to only one conclusion. Cadwallader v. Railroad Co., 128 Ind. 518, 27 N. E. Rep. 161, and authorities cited. In this case the facts exhibited in the answers to interrogatories fully cover the ground involved by the issue of contributory fault or no contributory fault. These are the facts: The plaintiff's intestate, John Korrady, had lived near the defendant's railroad tracks for several years, and was familiar with the place where he attempted to cross them. He undertook to cross at a place where there were five tracks. He made the attempt to cross in the morning of a quiet day. The middle truck was the main track, and the south tracks were side tracks. The engine by which he was struck was on the main track. As soon as Korrady crossed the side track immediately south of the main track, and before he attempted to cross the main track, he looked to the west to see if any train was approaching. He saw the approaching train, and at that point there was nothing to obstruct his view. If he had stopped at a point five feet south of the south rail he could have seen the approaching locomotive, and he did see it before attempting to cross. There was no sudden danger,-nothing requiring him to go forward,-but he might have remained in safety in the place where he saw the approaching engine. We think it clear that the intestate was guilty of contributory negligence. He was not only able to see the approaching locomotive, but he did see it, and notwithstanding this he undertook to cross the track. He made the attempt and incurred the hazard when there was no reason for doing so. The authorities are decisively against the right of recovery by one who voluntarily attempts to cross a track in front of a moving train which he sees not far distant, approaching the crossing. Railway Co. v. Hammock, 113 Ind. 1, 14 N. E. Rep. 737; Heaney v. Railroad Co., 112 N. Y. 123, 19 N. E. Rep. 422; Railway Co. v. Hill, 117 Ind. 56, 18 N. E. Rep. 461; Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234; Pakalinsky v. New York, etc., Co., 82 N. Y. 424; Railroad Co. v. Houston, 95 U. S. 697-702;Tully v. Fitchburg, etc., Co., 134 Mass. 499. The question is presented here as it was in Cadwallader v. Railroad Co., supra; but the facts are much stronger against the plaintiff in this case than they were in that case. If a plaintiff's negligence proximately contributes to his injury he cannot recover, no matter how negligent the defendant may have been,...