Neubacher v. The Indianapolis Union Railway Company
| Decision Date | 17 March 1893 |
| Docket Number | 16,086 |
| Citation | 33 N.E. 798,134 Ind. 25 |
| Parties | Neubacher v. The Indianapolis Union Railway Company et al |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
Judgment reversed, with instructions to grant a new trial.
L. B Swift, for appellant.
A Baker, E. Daniels, F. Winter and J. B. Elam, for appellees.
This is an action brought by the appellant against the appellees for damages resulting from an injury to appellant, alleged to have occurred by reason of the negligence of the appellees and through no fault of the appellant. A demurrer filed by the Chicago, St. Louis and Pittsburgh Railway Company was sustained to the complaint, and issues were joined between the appellant and the other appellees by answer of general denial to the complaint.
After the appellant had concluded his evidence in chief, and before the appellees with whom issue had been joined, had concluded their evidence, the court, by an instruction, directed the jury to return a verdict for the defendants. The jury, in accordance with the directions of the court, returned a verdict for the defendants, the appellees herein.
The appellant filed a motion for a new trial, which was overruled.
Errors are assigned on the rulings of the court on demurrer and the motion for a new trial.
The only question discussed and presented for our consideration relates to the action of the court in directing the jury to return a verdict for the defendants.
The injury to appellant occurred at a point where the railroad crosses Delaware street, in the city of Indianapolis. This street runs north and south, and the tracks cross it at nearly right angles. At the point of the injury, as shown by a plat in evidence, there are three tracks, numbered from south to north, 4, 5 and 6, used by various railway companies. A short distance to the south of track 4 are three other tracks crossing the street, running together and forming one track a short distance to the west of the street. A short distance to the north of track 6 are two other switch tracks, numbered 7 and 8. On the south side of track 4 there is a walk some twelve feet wide, leading up from the east to Delaware street, and used by a large number of footmen. There was a very large number of trains crossed this street on these lines of track during each day, probably in all, as shown by the evidence, 200 or more. Appellant had been accustomed to crossing the tracks at this point for a number of years. Delaware street is one of the principal streets in the city, and a large number of people and vehicles cross these lines of track each day.
The court's direction to the jury, as shown by the instruction given, was based solely on the theory that the uncontradicted evidence showed the appellant guilty of gross carelessness, contributing to the injury. If the court was correct in its conclusions drawn from the evidence, the instruction would have been correct, but if there was evidence from which fair-minded men might have reasonably concluded that the appellant used such care as a reasonably prudent man would have done under the circumstances at the time of the injury, then the court erred in directing the jury to return a verdict for the defendants, on the ground that appellant was guilty of contributory negligence. The nature of the crossing, the number of trains daily and hourly passing upon the tracks, and the large amount of travel upon the public street, rendered it a place of great danger, and required of railroad companies using the railroad tracks, and persons familiar with their use, a degree of care corresponding to the danger; but it did not require an abandonment of the use of the street on the part of the public, and the frequency of the trains might at times necessarily involve the necessity of prompt action in crossing after one train had passed to avoid being delayed or injured by another liable to pass in a brief space of time thereafter.
The only witness who testified as to the occurrence, and as to what the appellant did, was the appellant himself. No person saw him until after the injury. It is contended, on behalf of counsel for appellees, that the undisputed testimony of the appellant himself, according to the construction the counsel place upon it, shows that he came down the walk on the south side of track 4 to the sidewalk on the east side of Delaware street; that, at the time he reached that point, there was a passenger train approaching from the east, running toward the Union Station which was about one block, or 1,200 feet, distant; that the engine of the train...
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Neubacher v. Indianapolis Union Ry. Co.
... ... Howland, Judge.Action for personal injuries by Louis Neubacher against the Indianapolis Union Railway Company and another. Defendants had judgment by direction of the court, and plaintiff appeals. Reversed.Lucius B. Swift, for appellant. Baker & ... ...