New York, C. & St. L.R. Co. v. Coplen
| Citation | 100 Ind.App. 171,194 N.E. 789 |
| Decision Date | 27 March 1935 |
| Docket Number | No. 14919.,14919. |
| Court | Court of Appeals of Indiana |
| Parties | NEW YORK, C. & ST. L. R. CO. v. COPLEN. |
OPINION TEXT STARTS HERE
Appeal from Starke Circuit Court; William C. Pentecost, Judge.
Action by Harvey W. Coplen, administrator of the estate of Oris E. Coplen, deceased, against the New York, Chicago & St. Louis Railroad Company. Judgment for plaintiff, and defendant appeals.
Affirmed.Townsend, Thomas & Hilgemann, of Fort Wayne, and Harker & Irwin, of Frankfort, for appellant.
Arthur Metzler, of Rochester, for appellee.
Appellee brought this action against appellant for damages for the wrongful death of appellee's decedent, which occurred October 7, 1930, by reason of an automobile colliding with appellant's train in Fulton county, Ind.
The complaint was in two paragraphs, each alleging negligence of the appellant in the manner appellant ran its locomotive and passenger train over a highway crossing. The first paragraph alleges negligence on the part of appellant in failing to give the statutory signals at said crossing; the second alleges practically the same set of facts, with the additional charge that appellant had negligently placed on the highway at said crossing loose material consisting principally of coarse cinders, and that on the day of the accident, appellant negligently and carelessly maintained said highway so that appellee's decedent and other travelers could only use the same with difficulty.
To this complaint appellant filed an answer in general denial. The cause was submitted to a jury for trial, which resulted in a verdict for appellee upon which judgment was rendered.
Certain interrogatories were submitted to be answered by the jury. These interrogatories were answered by the jury, and their answers returned with the general verdict. Appellant filed its motion for judgment on the interrogatories and answers notwithstanding the general verdict, which was overruled; such ruling being assigned as error. Appellant then filed its motion for new trial, which was overruled; this ruling also being assigned as error. These were the only errors assigned for reversal.
In the motion for new trial, appellant alleges the following grounds: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the giving by the court of its own motion instructions Nos. 2 and 3; (4) in giving appellee's instructions Nos. 5, 8, 10, and 12.
The principal question stressed by appellant in its brief and in the oral argument was that the answers to the interrogatories show that appellee's decedent was guilty of contributory negligence. This question was also raised under the error assigned in overruling the motion for new trial by the grounds that the verdict was not sustained by sufficient evidence and was contrary to law.
We will not attempt to set them out in hæc verba, for it would unduly extend the opinion; but the substance of the answers to those interrogatories which appellant claims show appellee guilty of contributory negligence is as follows:
On the 7th day of October, 1930, at about 11:05 a. m., Oris E. Coplen was struck by a passenger train at the second highway crossing of the appellant company north of Tiosa, Ind.; that said highway runs over said crossing north and south; that the appellant railroad at this place is a single track, and crosses said highway at an angle of 21 degrees, northeast and southwest; that said Coplen had lived about 2,400 feet north of this crossing since the 1st day of March, 1930, but had not passed over this crossing often; that there was a whistling post about 2,250 feet north of the crossing, and also a crossing whistling post about 1,500 feet north of said crossing; that the station of Tiosa was about one mile from the whistling post first referred to; that there was a cut in the railroad right of way that begins about 1,000 feet from the crossing to the north, and the crossing whistling post was in about the deepest part of the cut; that there was a round metal disc railroad crossing sign about 318 feet from the crossing; that at the time of the accident there was a field of clover to the north and northwest between the highway and railroad track, and some trees along the railroad right of way; that the rails of the track were about 5 feet above the level of the field; that the appellant's passenger train consisted of an engine, tender, and two cars, in all about 210 feet in length; that the engine weighed ahout 120 tons, and extended about 14 feet above the rails at the smokestack; that at the time of the accident the train in question was running at a speed of from 50 to 60 miles per hour, and the engine thereon was equipped with a whistle and bell; that the bell at the time of approaching the crossing was ringing, and had been ringing continuously from the time the train left Argos, 7 or 8 miles north of the crossing in question; that the engineer, when about 100 feet north of the whistling post, gave one long blast for the station at Tiosa, which was answered by the conductor with an air signal to the engineer indicating he should stop at the station; that the engineer did not give any whistle signals for the crossing in question; that at the time Coplen was about 50 feet north of the crossing, the fireman on the engine first saw him, and he was moving about 20 to 25 miles per hour, traveling south on said highway; that the automobile proceeded onto the railroad track, and was struck by the train at or near the right side of the back of said automobile; that the weather on this date was cloudy; that there was a dip or depression in the highway about 70 feet north of the crossing; that when Coplen was at a point on the highway east of the southern end of the cut, he could not see the track as he proceeded south to the...
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