Quinn v. Chicago & E.R. Co.
| Citation | 162 Ind. 442,70 N.E. 526 |
| Court | Supreme Court of Indiana |
| Decision Date | 06 April 1904 |
| Parties | QUINN v. CHICAGO & E. R. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Jay County; John M. Smith, Judge.
Action by Barton W. Quinn, administrator of the estate of Robert A. Boblett, deceased, against the Chicago & Erie Railroad Company. From a judgment for defendant, plaintiff appeals. Transferred from the Appellate Court under Burns' Ann. St. 1901, § 1337o. Affirmed.D. B. Ninde, D. B. Erwin, and Headington & Whiteman, for appellant. W. O. Johnson, Adair & La Follette, A. P. Beatty, and L. J. Hackney, for appellee.
This action was brought by the administrator of the estate of Robert A. Boblett, deceased, against the Chicago & Erie Railroad Company, to recover damages on account of injuries resulting in the death of Boblett, alleged to have been caused by the negligence of the railroad company. The complaint was in a single paragraph, and the answer a general denial. The cause was tried by a jury, who returned a general verdict for the plaintiff, with answers to numerous questions of fact. The court sustained defendant's motion for judgment in its favor on the answers of the jury to the questions submitted to them. The plaintiff appeals, and the ruling on the motion for judgment is the error assigned.
Omitting its formal parts, the complaint stated the following facts: On August 5, 1899, and for more than one year previous to that date, the appellee owned and operated a line of railroad extending from Chicago, Ill., to and through Decatur, Ind. Said railroad passed through the city of Decatur from east to west, intersecting a public street of said city running from north to south, and known as “Third Street.” In addition to its main track so intersecting said street, the appellee maintained a side track on the south side of the main track, and parallel with it, running across said street eastward to appellee's freighthouse in said city. On said day, while appellant's decedent was passing northward along the sidewalk on the west side of said Third street, and south of said side track, a train of freight cars, with an engine attached to the east or far end of said train, was standing on said side track east of said Third street, and 10 feet distant therefrom. Said train was standing still, without sign or signal that it would be moved, except upon due notice to passers-by. As the decedent approached the said crossing, he carefully watched for dangers which might arise from moving trains upon said railroad, and took notice of said train so standing on said side track. When he was about to step upon said track, appellant's east-bound freight train approached said crossing from the west, and the decedent then and there stopped to await the passing of said through freight train on said main track. While he was waiting for the passing of said train, appellee's servants negligently, and without notice or warning to the decedent by bell or whistle or otherwise, moved the said freight train before that standing on said side track. By reason of the passing of said freight train on the main track, and the noise and dust occasioned thereby, the decedent was unable, by the exercise of the utmost care and diligence, to hear or become aware of the approach of said freight train on said side track, and he had no knowledge of its approach. In consequence of the negligence of the appellee in failing to warn him of the approach of said train on said side track, the decedent was struck by the west end of said train, and sustained injuries from which he died on the same day. Said injuries were occasioned entirely by the negligence of the appellee, and without fault on the part of the decedent.
The answers of the jury to the questions submitted to them established these facts: Third street was one of the public streets of the city of Decatur, and was 60 feet wide. Two tracks of the appellee's railroad, described as the main track and the side track, crossed Third street at right angles. On August 5, 1899, between 10 and 11 o'clock in the forenoon, the day being clear, the decedent came along Third street, carrying a basket of clothes on his right shoulder, and approached the tracks. He was acquainted with the railroad crossing at Third street, and possessed ordinary intelligence. His eyesight and hearing were good. When he arrived at the crossing, a through freight train on the main track was moving toward Third street. When he was from 60 to 80 feet south of the side track, appellee's freight engine, with two loaded cars, went east on the side track, and, when he reached the crossing at Third street, this engine and these cars were standing still near Winchester street, which was about 315...
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