Pennsylvania Co. v. Myers

• Citation: 136 Ind. 242,36 N.E. 32
• Parties: PENNSYLVANIA CO. v. MYERS.
• Decision Date: 02 January 1894
• Court: Supreme Court of Indiana

136 Ind. 242

36 N.E. 32

PENNSYLVANIA CO.

v.MYERS.

Supreme Court of Indiana.

Jan. 2, 1894.

Appeal from superior court, Allen county; C. Chapin, Judge.

Action by Margaret Myers, administratrix, etc., against the Pennsylvania Company for the death of her intestate, Ferdinand Myers, killed while walking on defendant's track. From a judgment for plaintiff, defendant appeals. Reversed.

J. Brackenridge, for appellant. L. M. Ninde, for appellee.

McCABE, J.

This action was brought by the appellee against appellant to recover damages for alleged negligence in causing the death of the intestate, Ferdinand Myers, deceased, husband of the appellee. The complaint was in three paragraphs, a several demurrer to each of which was overruled; answer by general denial; trial by jury; verdict for appellee for $7,000, and along with the verdict the jury answered interrogatories propounded by both parties. The trial court overruled appellant's motion for judgment in its favor upon the answers to such interrogatories notwithstanding the general verdict, and overruled appellant's motion for a new trial. The assignment of errors calls in question these several rulings.

The first paragraph of the complaint charges that appellee's intestate was a policeman in the city of Ft. Wayne at the time of his injury and death, the 22d day of April, 1887, with full power and authority from the city and the appellant in the discharge of his duties of policeman to go upon appellant's railroad, and pass along its tracks, for the better protection of said railroad; that said railroad was constructed with a double track through said city; that upon the day above named the decedent, Ferdinand Myers, in the discharge of his duty as policeman, was carefully and diligently passing on and along the south track of said railroad from Fairfield avenue to Broadway, in said city, in the nighttime, when said appellant, by its agents and servants, carelessly, etc., in violation of an ordinance of said city, ran its east-bound passenger train over and along said south track of its railroad, between said Fairfield avenue and Broadway, at a dangerous rate of speed to wit, 40 miles an hour; and that the intestate, to avoid a collision with said train, carefully and diligently watched its progress, to ascertain which track it was on, and so soon as he found that the train was meeting him on said track, to avoid injury, “carefully and diligently” stepped from the south track of the road to the north track thereof, when the appellant carelessly drove and ran a certain other of its express passenger trains westward on and along said north track of its railroad, at a dangerous rate of speed, to wit, 40 miles an hour, on and over said intestate, whereby he was killed, etc. The paragraph further alleges that said train was running two hours behind its scheduled time, without warning the intestate of its approach by ringing the bell, blowing the steam whistle, or other signal, whereby he could by due care have heard the same, and been advised that it was running on said track, and approaching him. The complaint further sets out an ordinance of the city and rule of the appellant limiting trains to a speed of six miles an hour in passing through the city, and then follows the averment that the defendant was killed without any fault on his part.

The second paragraph of the complaint is substantially the same in its statement of facts as the first paragraph, except that it is alleged that the train was running west on the north track of the railroad, was run in the negligent manner stated; that with full knowledge that the intestate was on the track the appellant ran the train at the rate of 40 miles an hour, without warning of its approach; that it was two hours behind time, running through a populous portion of the city, in violation of a city ordinance; that with gross negligence such train was run upon the intestate “willingly,” willfully, and unlawfully.

The third paragraph alleges, among other things, that the railroad is double-tracked through the city, and that the intestate, at the time of his injury, and for 10 years theretofore, had been a duly-appointed policeman of said city of Ft. Wayne, with full power and authority as such, in the discharge of his duties, and in passing from place to place in said city, to go upon the said railroad, and pass along and over its track in said city, for the better protection of the same. The principal allegations in this paragraph of the complaint are very similar to those in the others. In this, as in those, it is alleged that he went upon the south track, and to avoid a passenger train approaching him thereon he stepped onto the north track, when the appellant carelessly, negligently, and without any due regard for life, limbs, or safety of said deceased, willfully drove its westbound passenger train along its said north track, at a dangerous rate of speed, to wit, 40 miles an hour, and carelessly, negligently, and recklessly, and without any regard for the safety of the deceased, willingly and willfully ran said train over said deceased, and killed him. It is further alleged that the train was run in violation of an ordinance of the city and a rule of the appellant, limiting the speed of trains to six miles an hour. There is no averment in this paragraph that the injury occurred without the fault of the intestate, and it is probable that the design of the pleader was to charge a purposed and intentional killing.

In the view we have taken of the answers to the interrogatories, it is unnecessary to pass upon the question as to whether either of the paragraphs of the complaint states facts sufficient to constitute a cause of action. The interrogatories and the answers thereto returned by the jury cover the whole entire case, and are decisive of it the one way or the other. It is earnestly contended, however, on part of the appellee, that the interrogatories and answers thereto are not in the record. We therefore set out that part of the record immediately preceding the interrogatories pertinent to the question, along with them, which are as follows:

“Come the parties, and said jury also comes, and, having heard the evidence and argument of counsel concluded, and received the charge of the court, the said jury retire to their room to deliberate of their verdict, together with certain interrogatories to them propounded by consent and approval of the court. * * * Come the parties, and the said jury also come and return into open court their verdict, together with the interrogatories to them propounded, and their answers thereto, and which verdict and interrogatories are in these words: ‘We, the jury, find for the plaintiff, and assess her damages in the sum of seven thousand dollars. John Aiken, Foreman.’

The plaintiff asks the court to require the jury, if they find a general verdict in said cause, to answer the following interrogatories: ‘(1) Was not the deceased, at the time of his death, a duly-appointed policeman of the city of Ft. Wayne, and had he not held and discharged the duties of said office for several years before his death? Ans. Yes. (2) Was not the defendant's railroad track, where the deceased was killed, within and a part of his beat? Ans. Yes. (3) Was not the duty of the deceased to patrol and go on and along the defendant's said railroad track, when necessary, to keep tramps and law breakers off of said tracks, and to protect the defendant's said track and its property thereon? Ans. Yes. (4) Had not the deceased authority from the defendant to go onto and patrol said tracks before and at the time he was struck and killed by the defendant's train? Ans. Yes. (5) Was he not proceeding carefully on and along said track, in the faithful discharge of his duties as such policeman, at the time he was struck by defendant's train? Ans. Yes. (6) Was not the defendant, by its agents and servants, running its east-bound passenger and express train on its south track past the deceased at the time he was struck? Ans. Yes. (7) Was not the deceased going westward on the north track at the time he was struck? Ans. Yes. (8) Did not the defendant's west-bound passenger and express train approach the deceased from behind him, with great violence, and at a high rate of speed, and strike him? Ans. Yes. (9) Was not the deceased ignorant of the approach of said train that struck him till it was too late for him to avoid being struck? Ans. Yes. (10) Was not said west-bound train going at the rate of 30 to 35 miles per hour at the time it struck the deceased? Ans. Yes. (11) Was not the east-bound train running at the rate of 20 miles. per hour or more at the time the deceased was passing? Ans. Yes. (12) Did not the accident occur in a populous and frequented portion of the said city of Ft. Wayne? Ans. Yes. (13) Did not the city of Ft. Wayne, by ordinance, duly passed, prohibit trains running through said city faster than six miles per hour, and was not said ordinance in force, and known to defendant, at the time deceased was killed? Ans. Yes. (14) Had not the defendant a printed and published rule that no train should be run through said city faster than six miles per hour? Ans. Yes. (15) Was not said west-bound train, at the time it struck the deceased, being run at the said rate of thirty to thirty-five miles per hour, without ringing its bell? Ans. Yes, and bell ringing. (16) Was not said east-bound train, as it passed deceased, ringing its bell, and making other loud noises, so as to prevent the deceased from hearing the approach of said train that struck him? Ans. Yes. (17) Was not the electric light burning at Fairfield avenue at the time of the accident? Ans. Yes. (18) By said light, and by the aid of its headlight, could not the agents of the defendant on the engine of said west-bound train have seen said deceased on said track long enough before it struck him to have stopped said train before it struck him? Ans...