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

Decision Date29 May 1912
Docket NumberNo. 7,537.,7,537.
Citation52 Ind.App. 59,98 N.E. 654
PartiesLAKE SHORE & M. S. RY. CO. v. MYERS.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, DeKalb County; E. A. Bratton, Judge.

Action by Guy Myers, by his next friend, George Myers, against the Lake Shore & Michigan Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.Walter Olds and F. J. Jerome, for appellant. P. V. Hoffman and C. M. Phillips, for appellee.

FELT, J.

Appellee brought this action, by his next friend, for damages resulting from an injury to appellee alleged to have been caused by the negligence of appellant. There was a trial by jury, verdict for appellee in the sum of $1,000, and judgment thereon.

The first error assigned and relied upon by appellant is that the court erred in overruling the demurrer to the complaint. The complaint, in substance, avers that appellant's double-track railroad crosses a street in the business center of Waterloo; that said crossing was used by many people both on foot and in vehicles; that it was a dangerous crossing, and was so recognized by appellant; that on the evening of April 4, 1908, appellee was at said crossing, waiting to cross said railroad as soon as one of appellant's west-bound freight trains had passed; that said west-bound freight was closely followed by another train on the same track; that, when said freight had passed, appellee, without warning or notice of the approach of another train, attempted to cross, and was struck by an east-bound train and injured.

It is then charged that appellant was negligent (1) in not maintaining a flagman at said crossing during the evening; (2) in failing to keep said crossing lighted; (3) in running a second train in such close proximity to said west-bound freight as to divert appellee's attention from danger on the other track from a train running in the opposite direction; (4) in negligently failing to give the statutory or any other warning of the approach of said east-bound train; and (5) in running said train over said crossing at night at a dangerous rate of speed of 20 miles an hour.

[1][2] It is not a valid objection to a complaint for personal injuries that it charges several acts of negligence in the same paragraph. Proof that any one of such acts was the proximate cause of the alleged injury is sufficient to sustain the action, unless the complaint counts upon the combined effects of two or more such alleged acts. Chicago, etc., R. Co. v. Barnes, 164 Ind. 143-149, 73 N. E. 91;Standard Oil Co. v. Bowker, 141 Ind. 12-16, 40 N. E. 128;Pittsburg, etc., R. Co. v. German Ins. Co., 44 Ind. App. 268-271, 87 N. E. 995;New York, etc., R. Co. v. Callahan, 40 Ind. App. 223-225, 81 N. E. 670.

[3] The averments of the complaint are sufficient to charge appellant with actionable negligence, and to warrant a recovery in the absence of contributory fault on the part of appellee. Cleveland, etc., R. Co. v. Miles, 162 Ind. 646-650, 70 N. E. 985. The averments of the complaint do not show appellee to have been guilty of contributory negligence as a matter of law, and it was therefore a question for the jury to determine from the evidence whether he used due care to prevent the injury. Cleveland, etc., R. Co. v. Miles, supra, at page 654 of 162 Ind., at page 988 of 70 N. E.;Baltimore, etc., R. Co. v. Rosborough, 40 Ind. App. 14-18, 80 N. E. 869.

The substance of the jury's finding in its answers to interrogatories is as follows: Appellee was injured about 8 p. m. on April 4, 1908, by being hit by an east-bound freight train on the north main track of appellant's railroad at the crossing of said railroad and Wayne street, one of the business streets of the town of Waterloo; that said train was running at a speed of about 25 miles an hour; that at said crossing there were two main tracks and two side tracks south of the main tracks; that said crossing was much used by the people of the town and surrounding country; that the night of April 4, 1908, was a dark night, and said crossing was not so lighted that the north track could be seen for any considerable distance on such a night while a train was passing over said crossing on the south track; that just prior to the injury appellee stood on the south side of a west-bound train on the south track waiting for said train to pass, so he could cross over to the other side; that he looked and listened for a train from the west, and continued so to do until he started to go across the tracks, which he did as soon as the caboose of the west-bound train had passed far enough to let him proceed; that at the time he started to cross said tracks he saw another train coming up from the east on the south track about 240 feet distant; that he did not know whether said train was a freight or passenger train; that at the time appellee started to cross over said tracks he had no knowledge that a train was approaching on the north track from the west; that the passing caboose obstructed the angle of his vision so that he could not see the train approaching from the west until near the north track; that if appellee had looked to the west when he passed across the south main track in the rear of the caboose of the west-bound train, and before stepping upon the north main track, he could not have seen the east-bound train in time to have avoided the injury; that as appellee approached the north track there was a warning call from the conductor of the west-bound train that a train was coming, but such...

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  • Lake Shore & M.S. Ry. Co. v. Myers
    • United States
    • Indiana Appellate Court
    • December 31, 1912
    ...of Indiana, Division No. 1.Dec. 31, 1912. OPINION TEXT STARTS HERE On petition for rehearing. Petition overruled. For former opinion, see 98 N. E. 654.FELT, J. The appellant in its petition for a rehearing insists with much zeal that the court in the original opinion failed to give a suffic......

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