Lake Shore & M.S. Ry. Co. v. Myers, 7,537.

• Docket Nº: No. 7,537.
• Citation: 52 Ind.App. 59, 98 N.E. 654
• Case Date: May 29, 1912
• Court: Court of Appeals of Indiana

52 Ind.App. 59
98 N.E. 654

LAKE SHORE & M. S. RY. CO.
v.
MYERS.

No. 7,537.¹

Appellate Court of Indiana, Division No. 1.

May 29, 1912.

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.

[98 N.E. 655]

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...