Lutz v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 13 May 1915
• Docket Number: No. 8512.,8512.
• Citation: 108 N.E. 886,59 Ind.App. 16
• Court: Indiana Appellate Court
• Parties: LUTZ v. CLEVELAND, C., C. & ST. L. RY. CO.

59 Ind.App. 16

108 N.E. 886

LUTZ

v.CLEVELAND, C., C. & ST. L. RY. CO.

No. 8512.

Appellate Court of Indiana, Division No. 1.

May 13, 1915.

Appeal from Circuit Court, Clark County; Wm. C. Utz, Special Judge.

Action by Burdette C. Lutz, administrator, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for defendant, and plaintiff appeals. Reversed, with instructions.

George H. D. Gibson, of Charlestown, H. Willard Phipps, of Jeffersonville, and Frank S. Roby, Ward H. Watson, Sol H. Esarey, and Elias D. Salsbury, all of Indianapolis, for appellant.

HOTTEL, C. J.

Appellant brought this action against appellee to recover damages for the death of his decedent, who was struck and killed by one of appellant's trains at a public street crossing in the town of Charlestown. The issues of fact were presented by a complaint in two paragraphs and an answer in general denial. There was a trial by jury, which resulted in a general verdict in favor of appellant for $2,300. With this verdict the jury returned answers to interrogatories, and on appellee's motion the court rendered judgment on such answers in favor of appellee.

[1] The ruling on this motion is the only error assigned and relied on for reversal presented by appellant. Whether such ruling constitutes reversible error depends on whether there is irreconcilable conflict between such answers and the general verdict, and in determining this question we are confined to a consideration of the facts pleaded, the answers to interrogatories, and the general verdict. We therefore first indicate the facts pleaded affecting the questions presented by the appeal. For this purpose, the substance of the averments of the second paragraph of complaint will be sufficient. Such paragraph alleges that, at the time decedent was run over and killed, appellee, by virtue of a contract, lease, and traffic arrangement was operating its trains over the tracks and right of way of the Baltimore, Ohio & Southwestern Railroad Company; that such tracks pass through the town of Charlestown, and cross nearly at right angles Water street, in said town, which runs in an eastwardly and westwardly direction; that such street is much traveled and used by the public at all times; that at the point where the railroad crosses said street there is a narrow cut, 15 feet deep, which cut extends along said right of way for more than a half mile from the north side of such street; that the railroad tracks are laid on the bottom of such cut; that said street crossing is graded down to a level with the railroad track, and crosses such track at grade; that for a distance of 100 feet on either side of such track there is a cut in the street to bring it down to the level of the crossing; that such cut has abrupt walls on both sides thereof; that at a distance of about 200 yards both north and south of the street crossing the railroad makes an abrupt and sharp curve to the west; that on the north side of such street and west of the railroad track there was a large dwelling house, trees, and fencing; that dwelling houses were located on both sides of the track and north of the crossing for a distance of half a mile, with lights in them at nighttime; that all of said conditions herein stated existed at the time of the injury; that on the day of the injury appellant's decedent was going along Water street and attempted to cross the railroad; that on account of the cut in the street and railroad right of way, the curve in the track, and the buildings, trees, and fencing aforesaid, the decedent, as she approached the crossing, was unable to see the approaching train; that she was on foot, and traveling on the south side of the street, and when she approached near the track she stopped, looked, and listened, and used all due care to ascertain if a train was then coming along the track toward the crossing and nearly approaching the same, and, not seeing or hearing any train approaching the crossing at the time, went upon the railroad track at such crossing, and while thereon was immediately run down and killed by a train operated by appellee approaching from the north; that appellee negligently failed to give the statutory signals when approaching such crossing, and carelessly and negligently ran such train at a high rate of speed, to wit, 60 miles an hour; that on account of such high rate of speed, and on account of appellee's failure to give warning of the approach of its train to the crossing, decedent did not see or hear the train until it was too late for her to extricate herself, and get off the track, and avoid being struck and killed by such train, all without any fault on her part.

It is first contended by appellee in support of the judgment rendered by the trial court that the answers to interregatories show that appellant's decedent was guilty of contributory negligence. The answers affecting such question show in substance that appellant's decedent was a widow, 66 years of age, blind in the left eye; that at the time in question, and for 10 years previous thereto, she lived on the south side of Water street, west of the railroad, and about 90 feet from the crossing; that at the time in question she was going to her daughter's, who lived on the opposite side of the railroad and about 300 feet from the home of the decedent; that when she started to go from her home across to the home of her daughter she had a woolen scarf tied over her head and under her chin; that the injury happened at the intersection of the railroad tracks and Water street on December 15, 1908, at about 6:30 p. m.; that the headlight on the locomotive was burning at the time it approached and passed over Water street crossing; that appellee's train, when it passed over the crossing in question, was running from 40 to 50 miles per hour; that the engineer sounded a station signal when about 3,000 feet north of Water street, a loud blast that could be and was heard at Water street crossing; that no crossing signal was sounded or bell rung as the train approached the crossing; that such train No. 33 received orders at Blotcher to take the passing track at Charlestown, in order to allow the Baltimore & Ohio Southwestern north-bound train No. 20 to pass; that appellee's train took such siding and was passed by such north-bound train; that decedent, before she was struck, crossed the track on the south side of Water street, and went to a point on the east side of the track near the east rail, and immediately thereafter proceeded to walk along the east side of such track northwardly on a line about parallel with the track and within 4 feet thereof to the point where she was struck by the train; that there was no evidence as to the distance she walked northwardly parallel with such track; that from a point 3 feet east of the east rail of said track to a point 12 feet west of the west rail of such track and parallel therewith there was an unobstructed view of the headlight of a train approaching from the north for a distance of 800 feet from Water street; that the train which struck decedent was a regular passenger train, which had passed over the Water street crossing daily for some time immediately before the accident, and decedent was familiar with Water street crossing, and with the operation of trains across said crossing; that there was an electric light burning one square north of Water street crossing, and within 15 feet of the track, at the time decedent was killed; that at the time decedent was struck by said train there were lights shining from windows of houses both on the east and west of said track and...