Pittsburg, C., C. & St. L.R. Co. v. Hoffman

• Decision Date: 16 March 1927
• Docket Number: No. 12633.,12633.
• Citation: Pittsburg, C., C. & St. L.R. Co. v. Hoffman, 87 Ind.App. 619, 155 N.E. 622 (Ind. App. 1927)
• Parties: PITTSBURG, C., C. & ST. L. R. CO. v. HOFFMAN.
• Court: Indiana Appellate Court

87 Ind.App. 619

155 N.E. 622

PITTSBURG, C., C. & ST. L. R. CO.

v.HOFFMAN.

No. 12633.

Appellate Court of Indiana, in Banc.

March 16, 1927.

Appeal from Superior Court, Delaware County; Robert F. Murray, Judge.

Action by Lizzie Hoffman against the Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company.Judgment for plaintiff, and defendant appeals.Affirmed.

G. E. Ross, of Logansport, and Silverburg, Brakan & Gray, of Muncie, for appellant.

Oren W. Dickey, of Marion, for appellee.

McMAHAN, C. J.

Complaint by appellee in two paragraphs.The first paragraph alleges that appellant owns and operates a double track line of railroad through Gas City, where it crosses a public highway in said city, known as South H street; that at the time in question appellant maintained an electric gong or bell on the south side of the street, and west of the west track at said crossing, for the purpose of warning travelers on the street of the approach of trains; that on July 24, 1923, about 8:20 p. m. appellee, while traveling on said street, approached the crossing from the west; that a west-bound freight train was then going northwest on the east track, and she stopped about five feet west of the west track in the street until the freight train passed over the crossing, after which she started to cross, and was struck by a locomotive drawing a train of cars southeast on the west track and injured; that it was so dark that the city street lights were burning, but there was no light at or near said crossing; that an electric headlight on a locomotive would have shone across the crossing, but that the locomotive which struck her was equipped with a dim oil lamp, and shed no light in front as it traveled over the crossing; that the electric gong placed there to warn travelers did not ring or sound; that appellants' employees in charge of said locomotive did not blow the whistle, ring the bell, or give any signal to warn appellee of the approach of said locomotive, but carelessly and negligently ran and operated the same over the crossing and against her, without any warning, at the rate of 30 miles an hour; that her home was near said crossing, and she was in the habit of passing over the same both night and day, and had observed that at night appellant's locomotives were equipped with bright electric headlights; that she was accustomed to the warning given of approaching trains by the bright lights, the blowing of the whistle, and ringing of the bell on the locomotive, all of which were absent at the time in question; and that by reason of the alleged negligence of appellantshe was struck by the locomotive and severely injured.

The second paragraph seeks to recover for the death of a minor son of appellee, and the negligence relied on is the same as alleged in the first paragraph.

Demurrer to each paragraph being overruled, appellant filed an answer of general denial.A trial by jury resulted in a verdict and judgment for appellee for $4,500.

[1]Appellant contends the court erred in overruling its demurrer to each paragraph of complaint and in overruling its motion for a new trial.The contention of appellant is that the facts alleged fail to show it was under any legal duty to protect appellee from the injury of which complaint is made; that the facts do not show any specific legal duty owed by appellant to appellee which was not performed; that the facts alleged do not show any failure on the part of appellant to perform any legal duty which it owed to appellee was the proximate cause of her injury.Other contentions along the same line are made, but there is no merit in any of them, and this opinion will not be extended to set them out.

It is hardly conceivable that the learned counsel for appellant has overlooked the allegation in each paragraph of the complaint wherein it...