Krenzer v. The Pittsburg, Cincinnati, Chicago And St. Louis Railway Co.

• Decision Date: 15 April 1896
• Docket Number: 17,654
• Citation: 43 N.E. 649,151 Ind. 587
• Parties: Krenzer, by Next Friend, v. The Pittsburg, Cincinnati, Chicago and St. Louis Railway Company
• Court: Indiana Supreme Court

43 N.E. 649

151 Ind. 587

Krenzer, by Next Friend, v. The Pittsburg, Cincinnati, Chicago and St. Louis Railway Company

No. 17,654

Supreme Court of Indiana

April 15, 1896

Rehearing Denied Dec. 16, 1898, Reported at: 151 Ind. 587 at 592.

From the Hamilton Circuit Court.

Affirmed.

A. G Smith, C. A. Korbly, Beckett & Doan and Christian &amp Christian, for appellant.

Samuel O. Pickens, for appellee.

Howard J. McCabe, J., dissents.

OPINION

Howard, J.

This was an action for personal injuries, brought by appellant against appellee. The jury found for appellant in the sum of $ 4,000, and with their verdict returned answers to certain interrogatories. On motion of appellee, the court gave judgment against appellant, upon the answers to interrogatories, notwithstanding the general verdict in his favor. The complaint was in three paragraphs. The material allegations were: That the appellee company was operating one of its locomotives upon and over one of the tracks of the Union Railway Company, known as the "Belt Railroad," within the city of Indianapolis, near the intersection of said track with the Lake Erie and Western Railroad; that said track had, for twenty years or more, been used by pedestrians to pass back and forth upon, with the knowledge, acquiescence, consent, and permission of the Union Railway Company and of appellee; that near said point was an open common, on either side of the Belt track, whither children were attracted in large numbers by the green grass and cool shade during the summer months, using the same for a playground, and passing upon and over said Belt track at that point with the knowledge of appellee and of said Union Company; that there was no fence or other obstruction to keep children off said track, and no watchman or other person, or notice, or warning, to prevent children or other persons from going upon said track, or walking on the same; that appellee used said Belt track daily for the transportation of its cars and locomotives, and had so used the same for more than twenty years; that the appellant, a boy seven years old being too young to appreciate the danger, or have proper discretion in the matter, and without proper sense to appreciate the danger, without the knowledge of his parents, and without fault upon his part, and without negligence of his parents, came upon said track at a point where the same is crossed by a public highway of said city, and while within said public highway, and in plain view of the appellee, there being nothing to obstruct the view of appellee's employes in charge of the locomotive, or to prevent them from seeing the appellant for a distance of 300 feet, appellee negligently ran its locomotive against, on to, and over said appellant, crushing and mangling his right foot and leg; that there was then in force an ordinance of the city of Indianapolis making it unlawful to run an engine at a higher rate of speed than four miles an hour along any track in said city, and requiring the bell on the locomotive to be rung when moving in or through said city; that, at the time of this injury to appellant, the locomotive was moving at a very high rate of speed, fifty miles an hour, and the bell was not ringing, and no signal of danger was given; that appellee's employes in charge of the locomotive could have seen appellant upon the track in time to stop the locomotive and prevent the injury, but that they negligently failed to look and observe the track ahead of the locomotive, and negligently ran upon and over the leg of appellant.

Counsel for appellee admit that the general verdict for the appellant was a finding of all the material facts stated in the complaint. Appellee's negligence and appellant's freedom from contributory negligence must therefore be taken as established, unless the answers to the interrogatories are found to be in irreconcilable conflict with the general verdict. The answers to interrogatories show that, at the time of the accident, the appellant was seven and one-half years of age; that he was a boy of usual and ordinary intelligence, and of average physical strength and activity for his age; that he knew that the track, at the place in question, was used to run cars and engines over, and had sufficient intelligence to know...