Morford v. Chicago, Indianapolis And Louisville Railway Co.
| Decision Date | 16 May 1902 |
| Docket Number | 19,820 |
| Citation | 63 N.E. 857,158 Ind. 494 |
| Parties | Morford v. Chicago, Indianapolis and Louisville Railway Company |
| Court | Indiana Supreme Court |
From Hamilton Circuit Court; J. F. Neal, Judge.
Action by Lewis F. Morford against the Chicago, Indianapolis and Louisville Railway Company for damages. From a judgment for defendant, plaintiff appeals. Transferred from the Appellate Court, under § 1337u Burns 1901.
Affirmed.
A. V Hodgin, J. E. Kepperley, C. E. Barrett, E. A. Brown, R Bamberger and I. Feibleman, for appellant.
E. C Field and W. S. Kinnan, for appellee.
This action was brought by appellant in August, 1899, to recover damages for the loss of services of his son, a minor, and for injuries to his horse, buggy, and harness, on the ground that the same were caused by the negligence of the appellee. The jury returned a general verdict in favor of appellant, and also answers to interrogatories submitted by the court at the request of appellee, under § 555 Burns 1901, § 546 Horner 1901, Acts 1897, p. 128. Appellee's motion for a judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict, was sustained and judgment rendered against appellant. This action of the court is assigned for error.
The general verdict necessarily determined each and every proposition essential to appellant's right of recovery in favor of appellant, and every reasonable presumption will be indulged in its favor, while nothing will be inferred or presumed in aid of the special findings of fact made in answer to the interrogatories. Chicago, etc., R. Co. v. Hedges, 118 Ind. 5, 8, 20 N.E. 530, and cases cited; Central, etc., Tel. Co. v. Fehring, 146 Ind. 189, 194, 45 N.E. 64. If, however, the facts found in answer to the interrogatories essential to appellant's recovery are inconsistent and in irreconcilable conflict with the general verdict, the court did not err in sustaining appellee's motion for a judgment in its favor on the answers to the interrogatories. § 556 Burns 1901, § 547 R. S. 1881, and Horner 1901; Chicago, etc., R. Co. v. Hedges, 118 Ind. 5, 8, 9, 20 N.E. 530; Frank v. Grimes, 105 Ind. 346, 350, 4 N.E. 414, and cases cited.
As no wilful injury was charged, appellant was not entitled to recover if the deceased was guilty of contributory negligence. This action was commenced after the taking effect of § 359a Burns 1901, § 284a Horner 1901, which makes contributory negligence in such actions as this a defense provable under the general denial. Indianapolis St. R. Co. v. Robinson, 157 Ind. 414, 61 N.E. 936; Malott v. Hawkins, 159 Ind. --.
Appellee insists that the answers to the interrogatories show that the deceased was guilty of negligence which directly contributed to the injuries sued for. If this is true there is no error in the record. The jury found, in answer to the interrogatories, that appellant's son was killed in a collision between one of appellee's locomotive engines and a buggy in which said son was riding, about 2:50 a. m. on January 30, 1899, at the crossing of appellee's track and a public highway known as Main street in the town of Carmel about two blocks north of appellee's depot in said town. That said highway runs east and west, and appellee's track runs north and south where it crosses said highway; that from said highway crossing appellee's track runs due north for the distance of about half a mile. Said highway approaching said crossing was practically level, without any down grade, for a distance of seventy-five feet or more. As the train approached the crossing, the headlight on the locomotive engine was burning; the weather was cold, and it was "snowing and blowing." At the time of the collision the deceased was riding alone in a top buggy drawn by one horse; the top was up, and the side curtains were on. The deceased was going west, and the locomotive which collided with said buggy was coming from the north, hauling one of appellee's through passenger trains, and at the time of the collision was going at the rate of about thirty miles per hour. Said train was a regular daily passenger train, and was about on schedule time that night. The deceased was, at the time, about sixteen years of age, was in the full possession of all his faculties, and his hearing and eyesight were good. He was and for a long time prior to said collision had been familiar with said crossing, its location and surroundings, and knew that a passenger train passed said point daily a few minutes before 3 o'clock a. m. A few minutes before the accident, the deceased and one Lindell left the house of one Hiatt in Carmel and went to Hiatt's barn, which was within three blocks of the Main street railroad crossing, to get appellant's horse and buggy. While they were engaged in hitching the horse to the buggy the deceased heard the roar of the train which killed him, and called Lindell's attention to the fact that the south bound train was approaching. The deceased, while he hitched up, knew said south bound passenger train was approaching Carmel from the north and was within hearing distance of the town. It was about ten minutes from the time the deceased heard said train at the barn until the accident occurred. After hitching up said horse, the deceased and said Lindell drove from said barn to Main street, about two blocks east of the railroad crossing, where they stopped and conversed for about five minutes. If deceased had listened attentively while at this point, he could have heard the noise and rumble of the approaching train. After having said conversation, the deceased drove west on Main street at a good trot until he reached the house of one Peele, the west side of which was about thirty-eight feet from the center of appellee's track. From...
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Morford v. Chicago, I.&L. Ry. Co.
... ... Neal, Judge.Action by Lewis F. Morford against the Chicago, Indianapolis & Louisville Railway Company. There was a judgment in favor of defendant, and plaintiff appealed to ... ...