Stoy v. The Louisville, Evansville And St. Louis Consolidated Railroad Co.

• Decision Date: 26 February 1903
• Docket Number: 19,993
• Citation: 66 N.E. 615,160 Ind. 144
• Parties: Stoy, Administrator, v. The Louisville, Evansville and St. Louis Consolidated Railroad Company et al
• Court: Indiana Supreme Court

66 N.E. 615

160 Ind. 144

Stoy, Administrator, v. The Louisville, Evansville and St. Louis Consolidated Railroad Company et al

No. 19,993

Supreme Court of Indiana

February 26, 1903

From Floyd Circuit Court; W. C. Utz, Judge.

Action by Lewis R. Stoy, administrator of the estate of Raymond P Stoy, deceased, against the Louisville, Evansville & St Louis Consolidated Railroad Company and its receiver. From a judgment for defendants on answers to interrogatories notwithstanding the general verdict, plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

H. M. Dowling, E. B. Stotsenburg and J. H. Weathers, for appellant.

A. P. Humphrey, J. D. Welman, C. L. Jewett and H. E. Jewett, for appellees.

Gillett, J. Dowling, J., took no part in the consideration of this case.

OPINION

Gillett, J.

Appellant instituted this action against said company and its receiver for the alleged wrongful killing of appellant's decedent, Raymond P. Stoy. The cause was put at issue, and a trial resulted in a verdict for appellant. In connection with the verdict, the jury answered forty-six interrogatories. Appellees moved for a judgment in their favor upon the answers to interrogatories. This motion the trial court sustained, over appellant's exception, and rendered judgment in favor of appellees. Whether this ruling was proper is the sole question that is presented for our consideration, and this question is still further narrowed by the admission of counsel for appellees that the ruling can only be upheld on the theory that the answers to the interrogatories disclose that said decedent Stoy was guilty of contributory negligence.

The answers to the interrogatories reveal the following facts: Just before his death, on the afternoon of March 1, 1898, said Stoy was proceeding south, at a brisk pace, along the east sidewalk of a public street in the village of Birds-eye, for the purpose of taking an east bound passenger train that was then approaching said company's station in said village. Said station was situated immediately south of the main track of said railway and immediately east of said street. It was necessary for Stoy to pass over a side-track, that was a few feet north of said main track, to reach said main track and said station. There were some detached freight-cars standing on said side-track just west of said street, and there were also some detached freight-cars standing on said side-track east of and near said street. A short distance beyond said last mentioned cars were some twenty freight-cars, with a locomotive attached to the east end thereof. The engineer of said freight-train backed the same up, upon the passenger-train approaching the station, presumably to get the locomotive and forward cars far enough into the siding so that the passenger-train could pass after it left the station. In closing up said freight-train, the detached cars to the east of the crossing were moved west at a rate of speed equal to three miles per hour, and, as Stoy was at that moment upon the crossing, he was knocked down by the rear car and killed. But a few moments before Stoy had been in the back part of a store that was on the east side of said street, and twenty-six feet north of the siding. On hearing the train, he passed hurriedly through the store, turned south when he reached the sidewalk, and proceeded towards the station. Stoy had been in the village frequently, and was familiar with the tracks at that point and with the vicinity generally. On the sidewalk, just south of the store, it was possible to see for 180 feet east along the siding; at a point half way to the crossing it was possible to look east along the siding 300 feet; and just north of the siding it was possible to see a train approaching on the siding from the east if it was within 400 feet. Our knowledge of what Stoy actually did in the matter of looking is limited to the answers to interrogatories forty and forty-four. These interrogatories and their respective answers are as follows: "(40) Did said Raymond P. Stoy turn his face sideways as he approached said crossing, looking to the southwest--towards said passenger-train? A. Yes. "(44) Did said Raymond P. Stoy, from the time he left Wells' store until he got on the siding, look east on said side-track in the direction of the freight-train and dead cars? A. No."

So much of the complaint as is material to the question presented is as follows: "That on the day aforesaid the said Raymond P. Stoy, having had business in that part of the said town of Birdseye north of said tracks, shortly before the time for the departure of the passenger-train of the defendants over said railroad for the said city of New Albany, proceeded along the street and public way which led to said platform and station, for the purpose of being transported as a passenger by the defendant on its passenger-train from said town of Birdseye to the city of New Albany; that at the time the said Raymond P. Stoy approached the said side-track and switch to cross the same, as he was compelled to do to reach said platform and station, four freight-cars, detached from a train and engine, were standing on said side-track and switch a short distance eastward from the street and crossing on, over, and along which the said Raymond P. Stoy was then and there carefully walking to reach said platform and station, to be carried as a passenger by the defendants; that some thirty feet eastward from the east end of the standing car farthest from said crossing was a long freight-train of the defendant; that just as the said Raymond P. Stoy was passing over the said side-track and switch, the defendants, by their servants and agents in charge of said freight-train, negligently and wrongfully caused said freight-train to be suddenly and violently run backward against said detached cars so standing on said side-track and switch, without signal or warning of any kind, so that the said Raymond P. Stoy was, without fault on his part, and solely by reason of the carelessness and negligence of the defendants, struck by said standing car so put in motion, knocked down, dragged, wounded, bruised, cut, run over, and killed."

The general verdict necessarily covers the whole issue, and solves every material question against the party against whom the verdict is rendered. The motion for judgment on the answers to interrogatories, notwithstanding the general verdict, should be refused, unless the antagonism between the verdict and the answers to interrogatories is such, on the face of the record, as to be beyond the possibility of being removed by any evidence legitimately admissible under the issues. McCoy v. Kokomo R., etc., Co., 158 Ind. 662, 64 N.E. 92, and cases there cited.

The forty-fourth interrogatory is ambiguous, and the jury may have construed it as calling for an answer as to whether Stoy looked to the east on said side-track during the whole of the time in which he was passing from the store to the crossing; but in any event it does not preclude the idea that he looked as soon as he reached the southwest corner of said store. Especially does the answer to the said interrogatory fail to show that his face was not so inclined, even if he did not distinctively "look east," that the detached cars to the east of the crossing were wholly within his field of vision.

As shown, the complaint avers that said detached cars were standing "a short distance eastward from the street." The complaint warranted evidence that the car nearest the street was standing very near said street, and that the impact of the train suddenly caused it to move over said crossing. The question before us is not whether the jury should have acquitted Stoy of contributory fault in view of the evidence, but whether the answers to the interrogatories on their face show, in view of the issues, that such a conclusion ought not to have been reached.

We do not place much stress upon the ambiguity of the forty-fourth interrogatory, because the answers to other interrogatories probably...