New York, C. & St. L. R. Co. v. Henderson, 29614

• Decision Date: 15 January 1958
• Docket Number: No. 29614,29614
• Parties: The NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellant, v. Ollie J. HENDERSON, Appellee.
• Court: Indiana Supreme Court

Page 237

147 N.E.2d 237

237 Ind. 456

The NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellant, v. Ollie J. HENDERSON, Appellee.

No. 29614.

Supreme Court of Indiana.

Jan. 15, 1958.

Batton, Harker, Kiley & Osborn, Marion, DeVoss, Smith & Macklin, Decatur, Harker, Irwin & Campbell, Frankfort, for appellant.

Nieter & Smith, Dan C. Flanagan, Fort Wayne, for appellee.

ARTERBURN, Judge.

The appellant has filed a petition for rehearing in which it states it feels we have not complied with our duty in specifically disposing of the question raised by appellant's objections to appellee's Instruction No. 4.

In our opinion we stated :

'Appellant also contends that it is not guilty of negligence by reason of the failure to sound a whistle on the locomotive because of an ordinance of the City of Fort Wayne * * *' It is true we did not mention specifically Instruction No. 4 in considering the ordinance of the city of Fort Wayne and its application to the case.

For fear that we may not have been as specific as we should have been in disposing of the question, we shall be more specific.

Appellant, in its petition for rehearing, states:

'The question properly raised, supported by proper objection in the trial court, was that appellee's Instruction 4 entirely ignored the ordinance and tells the jury that appellant was required to whistle in violation of the ordinance and that the failure to do so constituted negligence.' (Our italics.)

Instruction No. 4 complained of is as follows:

'While I have instructed you as to the duty and care of the Plaintiff in approaching the railroad crossing at Anthony Blvd. where she was injured, it was the duty of said Defendant to give timely warning, of the approach of its locomotive and train of cars on said track to the Plaintiff while approaching said street crossing, and this the defendant was bound to do, whether or not there was a statute or ordinance requiring signals to be given at said street crossing, and any failure to exercise this care required on the part of said Defendant at said street crossing, if shown, to exist in this case, was negligence on the part of said Defendant.'

The objections made thereto by the appellant are as follows:

'Defendant objects to the giving of plaintiff's Instruction No. 4, for the reason that it presupposes that the plaintiff has been injured, which said fact is a fact to be determined by the Jury, and therefore, said instruction invades the province of the Jury, and for the further reason that there is a whistle ordinance in the City of Fort Wayne, which is a part of the record, which requires locomotives not to sound their whistle.'

Appellant throughout its brief assumes appellee sustained an injury and no contention is made on that point before us on appeal.

We find no statement in the instruction to the effect that it 'tells the jury that appellant was required to whistle in violation of the ordinance.' The fact is the instruction is in harmony with and should be read in connection with Instruction No. 7 tendered by the appellee and given by the court, to which the appellant made no objection. Instruction No. 7 reads as follows:

'I instruct you that there was in full force and effect in the City of Fort Wayne, Indiana, on the 10th day of November, 1953, an ordinance known as Railroad...