New York, C. & S. L. R. Co. v. Shriner, 29795
| Decision Date | 02 July 1959 |
| Docket Number | No. 29795,29795 |
| Citation | 159 N.E.2d 574,239 Ind. 626 |
| Parties | NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellant, v. Elizabeth SHRINER, Appellee. |
| Court | Indiana Supreme Court |
Batton, Harker & Rauch, Marion, Walter B. Keaton, Rushville, Harker, Irwin & Campbell, frankfort, for appellant.
James S. Shepard, Liberty, Himelick & Himelick, Connersville, Earnest & Foster, Rushville, James Donadio, R. Stanley Lawton, Geo, Gavit, Indianapolis, for appellee.
Appellee by petition for rehearing asserts that the opinion as written failed to consider the fact that 'Not one of the seven interrogatories tendered in this case could have had '* * * a decisive or controlling effect regarding one or more of the issues raised by the pleadings and supported by the evidence.'' Appellee asserts that for this reason the trial court's refusal to submit these interrogatories to the jury was not an abuse of discretion, and therefore that under the test stated in the opinion the judgment should have been sustained.
The original opinion decided the issue now asserted but without supporting discussion. We therefore give consideration to this issue as it is presented by interrogatory No. 1, since, under the opinion as written, it is decisive of the appeal. The interrogatory is related to the issue as to whether the appellee had a flagman at the crossing at Eastern Avenue to warn travlers of the approach of trains. This issue was raised by the following pleadings.
The third paragraph of the amended complaint alleged that the train was backed 'without having any flagman on Estern Avenue to warn automobile traffic of approaching trains * * * or of giving any signal of any kind whatever.' The fifth paragraph of the amended complaint alleged that,
'At the time of said collision there was in full force and effect in the City of Connersville, Indiana the following City Ordinance, to-wit:
'Section 1. That it shall be unlawful for any railroad Company to run any locomotive, or car, across Mill Street, at the South end of Central Avenue and Fifth Street in said City at the Points where the tracks of the Cleveland, Cincinnati, Chicago & St. Louis railway crosses said streets; or Estern Avenue in said city where the tracks of the Lake Erie & Western railroad crosses said avenue, without a flagman stationed and maintained at crossings to warn travelers on said streets of the approach of locomotives and cars.
"Any railroad company violating any part of ...
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Krohn v. Shidler
...we shall frequently refer herein. New York, Chicago and St. Louis Railroad Co. v. Shriner (1959), 239 Ind. 626, 630, 158 N.E.2d 157, 159 N.E.2d 574. We understand the Shriner case, supra, to hold that a trial court may not refuse to submit an interrogatory which is in proper form merely bec......
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Perdue v. Ward, 270A19
...reversible error. In New York, Chicago & St. Louis RR. v. Shriner (1959) 239 Ind. 626, 158 N.E.2d 157 (rehearing denied 239 Ind. 626, at page 635, 159 N.E.2d 574), our Supreme Court sought to resolve the conflict in the prior case law. Judge Achor aptly stated the position of the court at p......