Lamport v. Lake Shore & M. S. R. Co.
| Decision Date | 15 October 1895 |
| Citation | 41 N.E. 586,142 Ind. 269 |
| Parties | LAMPORT v. LAKE SHORE & M. S. R. CO. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, St. Joseph county; Daniel Noyes, Judge.
Action by Mary J. Lamport, administratrix, against the Lake Shore & Michigan Southern Railroad Company, for the death of her intestate. From a judgment for defendant, plaintiff appeals. Affirmed.
Andrew Anderson, for appellant. Baker & Miller, Geo. C. Greene, and O. G. Getzen Danner, for appellee.
The appellant, as administratrix of the estate of Hortensius M. Lamport, sued the appellee in a complaint of two paragraphs for $10,000 damages to the widow and children of said decedent in causing his death through the alleged negligence of the appellee, as charged in the first paragraph, and through its willfulness, as charged in the second paragraph, of the complaint. At the close of the plaintiff's evidence the trial court instructed the jury to return a verdict for the defendant, which the jury accordingly did, upon which the appellee had judgment over appellant's motion for a new trial. Error is assigned here on the action of the circuit court in overruling that motion. It appears from the evidence that the decedent and his brother-in-law, Henry Boles, while approaching the appellee's station from the west on one of the appellee's side tracks at the village of Oscesola, in St. Joseph county, were both struck and killed by a backing gravel train on the evening of March 25, 1892. The appellee's railroad runs east and west of said station and village, and the village, containing about 100 inhabitants, lies east of the station or passenger depot. The appellee has four tracks, all passing on the north side of the depot,-two side tracks and two main tracks. The north track and the south track are side tracks. Boles lived on a farm a little north of west of the depot, 35 or 40 rods, the railroad running through his farm. His house was 5 or 6 rods north of the track. He had lived there 17 years. People coming on foot from that direction to the depot were in the habit of walking on the appellee's tracks for some distance west up to the depot, and had been for years. The decedent Lamport lived at Kendallville, Ind. He frequently visited his brother-in-law, Boles, and was familiar with all the surroundings, the running of the trains on appellee's railroad at that place, and the tracks. Outside of the roadbed the ground was wet and soft with some water standing in low places, though there was grass on it, and wagon loads of wheat had been frequently hauled over it; and there was no way provided for persons coming on foot from the west to the depot to avoid water and mud without walking on the roadbed of appellee. There were croquet grounds on appellee's grounds at the place, and such grounds of appellee were 15 rods wide on each side of the tracks. The decedent Lamport, on the day mentioned, came to the house of Boles, bringing with him his mother, who was also the mother of Mrs. Boles, to stay a few days with her daughter, arriving there on a westbound passenger train over appellee's railroad about 3 o'clock in the afternoon. Lamport intended to return home on the eastbound passenger train over said railroad, which was due at that station at 7:50 o'clock that evening. He and Boles started to walk from his house to the depot at about 7:30 o'clock for the purpose of Lamport taking passageon that train east to his home. No person ever saw them alive afterwards. Their dead bodies were found next morning, lying on the ground, one on the north side and the other on the south side of the north side track, some distance west of the depot, and their hats were found on the back end of the last or hindmost car of the gravel train. About the time they started from Boles' house there was a freight train passing on the south main track west, and the gravel or work train passed east beyond the station about the time they started. The gravel or work train came in on the north main track, and left the caboose standing on that track, a short distance west of the depot, with red lights on it, pulled up east of the depot, and backed in on the north side track westward until it came west of the depot. And the facts and circumstances already narrated, it is claimed, were sufficient to warrant the jury in inferring that the hindmost flat car in that train, while thus backing up, struck and killed Lamport and Boles while they were walking eastward towards the depot meeting it. The evidence further shows that there was no light on that car, but it shows that that train could be seen and heard 15 or 20 rods away. It is contended that the railroad company was guilty of negligence in not providing a safe way for passengers coming from that direction to get to the depot, and not providing a light on the rear end of that train to warn pedestrians and persons approaching the depot from that direction of the approach of the train. The foregoing is the substance of all the evidence.
We may concede, without deciding, that the company, by the foregoing...
To continue reading
Request your trial