Southern Railway Company v. Davis

• Decision Date: 05 January 1905
• Docket Number: 5,076
• Citation: 72 N.E. 1053,34 Ind.App. 377
• Parties: SOUTHERN RAILWAY COMPANY v. DAVIS, ADMINISTRATOR
• Court: Indiana Appellate Court

72 N.E. 1053

34 Ind.App. 377

SOUTHERN RAILWAY COMPANY v. DAVIS, ADMINISTRATOR

No. 5,076

Court of Appeals of Indiana

January 5, 1905

From Crawford Circuit Court; C. W. Cook, Judge.

Action by Jacob W. Davis, as administrator of the estate of Mary E Davis, deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed.

A. P Humphrey, J. D. Welman, Jerry L. Suddarth, C. L. Jewett and H. E. Jewett, for appellant.

Major W. Funk, John H. Weathers and William Ridley, for appellee.

OPINION

WILEY, J.

Appellee's decedent was killed at a grade crossing by coming in contact with a moving train on appellant's railroad, and this action was prosecuted to a successful termination in the court below to recover for damages resulting therefrom. The complaint was in one paragraph, to which an answer in general denial was filed. The cause was tried by jury, resulting in a general verdict assessing damages at $ 250, and with the general verdict the jury found specially by answering interrogatories submitted to them.

Appellant moved for a judgment on the answers to interrogatories notwithstanding the general verdict, which motion was overruled, and the overruling of that motion is the only error assigned. The facts stated in the complaint are sufficient to charge appellant with actionable negligence and by the general verdict the jury determined that question against it.

1. The complaint also pleads certain facts bearing upon the conduct of the decedent immediately preceding her death in her attempt to cross appellant's tracks, and avers that she was using due care, and was without fault. Since the passage of the act of 1899 (Acts 1899, p. 58, § 1, § 359a Burns 1901), in actions of this character, a plaintiff is not required to allege or prove the want of contributory negligence on his or her part, nor on the part of the person for whose injury or death the action may be brought. It follows from the provisions of the statute that the allegation that the decedent was free from fault, and in no manner contributed to her death, adds no force to the complaint. In such case the statute lays the burden upon the defendant of proving contributory negligence as a matter of defense.

By its general verdict, the jury found that appellant had not proved contributory negligence, and reached the conclusion that the decedent was free from fault. It was only upon this theory that the general verdict could be based. Hence by the general verdict we find the two vital issues in the case resolved against appellant: (a) That appellant was guilty of the negligence charged, and (b) that the decedent was free from fault. This finding must stand unless the answers to interrogatories are in irreconcilable conflict with one or both of the issues thus determined by the general verdict.

The question presented by overruling the motion for judgment on the answers to interrogatories is not a difficult one, as will appear by the facts exhibited by the answers to interrogatories. The material facts disclosed by the answers may be fairly and briefly stated as follows: At the time of her death decedent was fifty-five years old, was in good health, and possessed good hearing and eyesight. She had for nine years lived near the Fredericksburg and Corydon road which was a public highway, about a mile south of the railway crossing where she met her death, and during all these nine years she had passed over the crossing once or twice a week, and was familiar with it and its surroundings. The public highway referred to runs north and south, and intersects with appellant's main track and side-track, which run east and west at right angles. The crossing formed by the intersection of the highway and the railroad is in the small village of Ramsey, and such village contains only seventeen dwellings. There was no other railroad passing through Ramsey, and there was no other locomotive than that with which the decedent collided at or near that point. The decedent was killed on the 12th of February, 1901, the day was clear and cold, and the wind was blowing from the northwest. She left her home about 8 o'clock in the morning, and went to White's store, 260 feet north of appellant's tracks and of the crossing where she was killed. At this store she made some purchases, and started back home on foot about 8:30 o'clock, and was carrying a can of coal-oil and other articles purchased. She had her neck and ears heavily wrapped to protect them from the cold. When she left White's store to start home she walked down the street about 152 feet to a place known as "Stierstetter's corner," where another store was located, ninety-eight feet from the railroad crossing. At this point, by looking east, she could have seen the approaching train for a distance of over 1,500 feet. She passed down to the crossing in a rapid walk, crossed over the side-track onto the main track, and was struck by the locomotive just as she was stepping over the south rail of the main track--that being the rail farthest from the place where she entered the crossing. The whistle on the locomotive was blown so loud that it was heard by a man about a mile from the village. If the decedent had stopped and listened for the approaching train, she could have heard it, unless prevented by the muffling of her ears. From the time she left Stierstetter's corner until she went upon the railroad track she did not stop and listen. Before going upon the main track, if she had looked east, she could have seen the approaching train in time to have avoided injury. From the time she left Stierstetter's corner until the moment she was struck by the locomotive, she did not, at any time, look toward the approaching train....