New York Central Railroad Company v. De Leury
| Decision Date | 29 September 1934 |
| Docket Number | 14,733 |
| Citation | 192 N.E. 125,100 Ind.App. 140 |
| Parties | NEW YORK CENTRAL RAILROAD COMPANY v. DE LEURY |
| Court | Indiana Appellate Court |
Rehearing denied January 25, 1935. Transfer denied March 14 1935.
1. APPEAL---Review---Answers to Interrogatories.---In reviewing ruling on motion for judgment on answers to interrogatories only the complaint, the interrogatories, the answers thereto and the general verdict can be considered. p. 144.
2. TRIAL---General Verdict---Answers to Interrogatories---Construction.---Where plaintiff's complaint against a railroad company for personal injuries received in a crossing accident alleged negligence in failing to give a whistle signal, a general verdict for plaintiff was not overridden by answers to interrogatories to the effect that some whistle was blown but silent as to whether the whistle signal was given in the manner required by statute. p. 144.
3. RAILROADS---Crossing Accidents---Verdict---Answers to Interrogatories.---In an action against a railroad company for injuries received in a crossing accident, where defendant was charged with negligence in failing to sound the statutory three blasts of the whistle, a failure to find by answers to interrogatories that the statutory signal was given, was, in view of a general verdict for plaintiff, a finding that such three blasts were not given, notwithstanding a special finding that the whistle was sounded at least once. p. 144.
4. RAILROADS---Crossing Accidents---Mutual Rights at Crossings.---The rights of a railroad company and the public to the use of a highway crossing are equal except that the company is entitled to precedence in passing upon giving due notice of its desire to do so. p. 145.
5. RAILROADS---Crossing Accidents---Mutual Rights at Crossings.---A train is not lawfully upon a highway crossing, as against the traveler upon the highway, without having first given the statutory signals. p. 145.
6. RAILROADS---Crossing Accidents---Failure to Give Statutory Signals.---Failure to give a statutory signal at a highway crossing renders the railroad company liable for the damages caused by such failure, provided there is no contributory fault on the part of the injured party. p. 146.
7. RAILROADS---Crossing Accidents---Failure to Give Statutory Signals---Proximate Cause of Injury.---Where an automobile guest, injured at a railroad crossing, exercised due diligence in approaching the crossing, and the whistle of an approaching train was sounded once but not three times as required by statute, failure to give the statutory three blasts was held the proximate cause of the collision. p. 146.
8. NEGLIGENCE---Actions---General Verdict---Effect.---In an action for personal injuries alleging several acts of negligence, a general verdict for plaintiff was a finding that one or more of such negligent acts was the proximate cause of the injury and that plaintiff was not guilty of any negligence which proximately contributed to the injury. p. 146.
9. RAILROADS---Crossing Accidents---Contributory Negligence---Duty to Look and Listen---Guest in Automobile.---A guest in an automobile, as a matter of law, is required to exercise only reasonable care to ascertain whether a train is approaching, and, if so, to warn the driver. p. 147.
10. RAILROADS---Crossing Accidents---Contributory Negligence---Duty to Look and Listen---Where No Warning that Crossing Exists.---Where one is not familiar with the locality and there is nothing to reveal the presence of a railroad crossing, or to indicate the presence of danger, or anything to call attention to any need for special looking or listening, only ordinary care is necessary. p. 147.
11. RAILROADS---Crossing Accidents---Contributory Negligence---Effect of Visible Headlight.---The fact that a train's headlight is visible to a traveler on the highway does not necessarily charge the traveler with knowledge that a train is approaching, since the inference that the light was caused by some other means might be drawn by the jury. p. 147.
12. RAILROARS---Crossing Accidents---Contributory Negligence---Grade Crossing as Warning Per se.---A grade crossing, as matter of law, is a warning of danger where known or visible to a traveler or guest. p. 147.
13. APPEAL---Review---Instructions---Refusal to Give Tendered Instructions.---Refusal to give a tendered instruction is not reversible error (a) where the instruction is not applicable in its entirety; (b) where it is confusing; (c) where it is covered by instructions already given; (d) where it places a greater burden on the other party than the law requires; or (e) where it relates to a fact in the case, which, by answers to interrogatories, is shown not to exist. p. 148.
14. TRIAL---Instructions---Necessity For---Definition of Terms in Common Usage.---A tendered instruction defining the term "under the influence of liquor" was properly refused, such term being in common usage and understood by jurors of ordinary intelligence. p. 148.
15. EVIDENCE---Opinion Evidence---Non-Experts---Mental and Physical Condition.---In an action for personal injuries, plaintiff's mother, who visited plaintiff daily at the hospital and observed her physical and mental condition, and who had lived with plaintiff prior to the accident, was competent to testify as to her opinion of plaintiff's mental and physical condition. p. 148.
16. APPEAL---Review---Misconduct of Counsel---Effect of Instruction to Disregard.---Misconduct of counsel at the trial was not reversible error where the trial court explicitly instructed the jury to disregard the objectionable remarks and to gather all facts from the witnesses only. p. 149.
17. TRIAL---Misconduct of Counsel---Correction by Court.---When a court attempts to correct the alleged misconduct of counsel by an instruction to disregard the same, if given in a spirit to effect the purpose (and it must be so accepted), the jury is presumed to ignore such misconduct. p. 149.
18. APPEAL---Review---Harmless Error---Exclusion of Evidence---Where Same Matter Later Admitted.---Error in the exclusion of evidence was harmless where the same testimony was later admitted without objection. p. 150.
Action by Margaret De Leury against the New York Central Railroad Company for personal injuries received when the automobile in which she was a guest was struck by a train at a highway crossing. From a judgment for plaintiff, defendant appealed. Affirmed. By the court in banc.
Rehearing denied January 25, 1935. Transfer denied March 14, 1935.
From St. Joseph Circuit Court; Dan Pyle, Judge.
Action by Margaret De Leury against the New York Central Railroad Company for personal injuries received when the automobile in which she was a guest was struck by a train at a highway crossing. From a judgment for plaintiff, defendant appealed.
Affirmed.
G. A. Farabaugh, Walter R. Arnold, Louis Chapleau, and Bertrand Walker, for appellant.
Floyd A. Gellison, and W. A. Slick, for appellee.
Appellee was injured in a collision between an automobile, in which she was riding as a guest, and a train. It appears from the interrogatories submitted to the jury and the answers thereto, that the car in which appellee was riding was a sedan, driven by one Erbaugh, who had the lights on the car deflected or what is called "the dimmers on;" that such lights were sufficient to make objects and persons visible upon the roadway ahead of said automobile two hundred feet. At the driver's left was seated one Margaret Rensberger, and appellee and another were seated in the rear seat; that it was a clear night and that the window by the driver was down three or four inches; that the car ran quietly and at the time of the collision was traveling about 15 or 20 miles per hour, along Taylor Street, which intersected said railroad. The crossing was located in a built-up section of the city, at which crossing, at that time, there was no watchman, gates, bell, gong or other signaling device to warn people of such crossing, except a cross arm pole, which could not, by the exercise of ordinary care by appellee be seen until after the automobile in which she was riding had entered upon the tracks of the appellant. Said crossing contained three tracks, the south one being one and one-half feet higher than the street level and the center and north track, one and one-half feet higher than the south track. The planking and roadbed were up flush with the top of the rails of the tracks so that appellee, riding in the rear seat of the sedan, would not, in the exercise of ordinary care, become aware of the intersection until the automobile in which she was riding had entered upon appellant's tracks, and that appellee had no such knowledge until she entered upon the said south track, nor had she until that time any knowledge of the approach of the train, although she was looking straight ahead at the road. That on and prior to the date of the accident a city ordinance limited the rate of speed of trains passing through the City of Mishawaka to twenty-five miles per hour; that the train approached the intersection and struck the automobile while the train was running at twenty-eight miles per hour, and the bell on the train was continually ringing as the train approached the Taylor Street crossing. The whistle on the engine was sounded not more than one hundred rods nor less than eighty rods west of the Taylor Street crossing and although appellee and the others in the automobile had been singing, they had ceased singing when the automobile reached the crossing. Appellee was aware that the track must be crossed before reaching her home and she listened for trains about 100 feet south of the crossing but...
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