New York Cent. R. Co. v. Dyer
| Decision Date | 11 May 1938 |
| Docket Number | No. 27003.,27003. |
| Citation | 14 N.E.2d 718,214 Ind. 708 |
| Parties | NEW YORK CENT. R. CO. v. DYER. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Action by Russell W. Dyer, etc., against the New York Central Railroad Company to recover damages for death of Mrs. Margaret Warner. Judgment for plaintiff, and defendant appealed to the Appellate Court, from which the case was transferred, January 25, 1938, to the Supreme Court, under Burns' Ann.St.1933, § 4-218.
Judgment reversed, with instructions.Appeal from Gibson Circuit Court; A. Dale Eby, Judge.
Carl M. Gray, of Petersburg, and Embree & Baltzell, of Princeton (Harry N. Quigley, Samuel W. Baxter, and Chas. P. Stewart, all of Cincinnati, Ohio, of counsel), for appellant.
McDonald & McDonald, of Princeton, and Lockyear & Lockyear and R. Owen Williams, all of Evansville, for appellee.
At about 3 o'clock in the morning, Margaret Warner and her husband were returning to their home in the city of Petersburg. At a highway crossing, within the city limits and with the location of which they were both thoroughly familiar, their automobile, which Mr. Warner was driving, collided with the side of a freight train, which was passing over the crossing, and both were killed. The highway was paved, and the warning signs were substantially the same as those described in New York Central Railroad Co. v. Casey, Ind.Sup.1938, 14 N.E.2d 714, decided at this term. The appellee brought this action against the appellant to recover damages for the death of Mrs. Warner, charged to have been due to appellant's negligence. It is not charged that appellant violated any statute. The theory of the complaint is similar to that in the case referred to. There was judgment for the appellee.
We need not notice specifically the errors assigned. The facts are in all substantial respects like those in the Casey Case, and, as in that case, no negligence on the part of the appellant was established. The essential facts are not in dispute, and will not change.
Upon authority of New York Central Railroad Co. v. Casey, supra, the judgment is reversed, with instructions to enter judgment for the appellant, defendant.
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