Lamport v. The Lake Shore And Michigan Southern Railroad Co
| Decision Date | 15 October 1895 |
| Docket Number | 17,533 |
| Citation | 41 N.E. 586,142 Ind. 269 |
| Parties | Lamport, Admx., v. The Lake Shore and Michigan Southern Railroad Co |
| Court | Indiana Supreme Court |
From the St. Joseph Circuit Court.
The judgment is affirmed.
A Anderson, for appellant.
F. E Baker and C. W. Miller, for appellee.
McCabe J. Howard, J., took no part in this decision.
The appellant, as administratrix of the estate of Hortensius M Lamport, sued the appellee, in a complaint of two paragraphs, for ten thousand dollars 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 Osceola, in St. Joseph county, were both struck and killed by a backing gravel train, in the evening of March 25, 1892.
The appellee's railroad runs east and west at 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 five or six 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, Indiana. 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 road-bed, 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 road-bed 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 west-bound passenger train over appellee's railroad about 3:00 o'clock in the afternoon. Lamport intended to return home on the east-bound 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 the house to the depot at about 7:30 o'clock for the purpose of Lamport taking passage on 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 passed 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 hind-most flat-car in that train while thus backing up, struck and killed Lamport and Boles while they were walking eastward toward 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 fifteen or twenty 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 facts in evidence is shown to have been guilty of negligence and yet that is not enough to establish the appellee's cause of action as alleged in the complaint. It is alleged in the first paragraph thereof, that, "while in the exercise of ordinary care and without any fault on their part (they were) run against and struck by said flat-car and were thereby mortally injured and killed." The second paragraph charges a willful killing, but there is no claim or pretense by the appellant that there is a particle of evidence to prove such a...
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Lamport v. Lake Shore & M. S. R. Co.
... ... Lamport, administratrix, against the Lake Shore & Michigan Southern Railroad Company, for the death of her intestate. From a judgment for defendant, plaintiff ... ...