Lake Erie and Western Railway Company v. Sams
| Decision Date | 04 June 1920 |
| Docket Number | 10,323 |
| Citation | 127 N.E. 566,73 Ind.App. 397 |
| Parties | LAKE ERIE AND WESTERN RAILWAY COMPANY v. SAMS, EXECUTRIX |
| Court | Indiana Appellate Court |
From Porter Circuit Court; H. H. Loring, Judge.
Action by Cora Sams, executrix of the estate of John Sams, deceased against the Lake Erie and Western Railway Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
J. B Cockrum, Hickey & Wolfe, E. D. Crumpacker and Owen L Crumpacker, for appellant.
Daniel E. Kelly, Earl Rowley and L. Darrow, for appellee.
Action by appellee to recover damages for the death of John Sams, who was killed as a result of a collision by an automobile, in which he was riding, with appellant's train at a highway crossing. Trial resulted in a verdict and judgment for $ 2,500.
The action of the trial court in overruling the motion for new trial is the only error assigned; and the only questions presented are: (1) The alleged error in refusing to give instructions numbered 21 and 22 requested by appellant; (2) the giving of instruction No. 15 by the court on its own motion; and (3) that the damages are excessive.
The evidence discloses that the crossing at which decedent lost his life was such that approaching trains were not in plain view of travelers coming from the north on the highway until such travelers were within twelve or fifteen feet of the crossing; that decedent was riding in the back seat of an automobile with Clyde Johnson, the owner thereof, which machine was being operated by one Ross Johnson, a brother of Clyde Johnson; that the front end of the automobile, which was approaching from the north, was on the railroad track before the train was discovered by decedent, who had looked and listened for trains. It appears from the evidence that decedent and Clyde Johnson were partners in the dairying business, and that at the time of the collision they, with Ross Johnson, were returning from a public sale of dairy cattle, which sale they had attended, though they had not gone to purchase, but merely to see the cattle that were sold. It does not appear that Ross Johnson was in the dairying business with his brother and the decedent, nor that he was in any way interested in that business. He had gone to the sale merely as the companion of the other two men.
By its tendered instruction No. 21, appellant sought to have the court instruct the jury that the negligence of the driver of the automobile would be imputed to appellee, if they found from the evidence that the parties occupying the automobile were, at the time, all upon a common business errand; and by its instruction No. 22 asked that the jury be instructed as to the duty of appellee when the automobile approached the crossing. There was no error in refusing to give said tendered instructions, since neither, in the form drawn, was applicable to the evidence.
Instruction No. 15, given by the court on its own motion, is as follows "Both the plaintiff's decedent and the defendant railway company had an equal right to cross the street at the point where the accident happened, and the law imposes upon both ...
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