The Cincinnati, Hamilton And Indianapolis Railway Co. v. Duncan

• Decision Date: 20 November 1895
• Docket Number: 17,096
• Citation: 42 N.E. 37,143 Ind. 524
• Parties: The Cincinnati, Hamilton and Indianapolis Railway Co. v. Duncan, Admr
• Court: Indiana Supreme Court

42 N.E. 37

143 Ind. 524

The Cincinnati, Hamilton and Indianapolis Railway Co. v. Duncan, Admr

No. 17,096

Supreme Court of Indiana

November 20, 1895

Petition for Rehearing Overruled January 28, 1896.

From the Shelby Circuit Court.

The judgment is reversed, with instructions to grant the motion for a new trial.

R. D Marshall, B. L. Smith and C Cambern, for appellant.

Black & Pugh, Offutt & Black and Hord & Adams, for appellee.

McCabe J. Hackney, J., took no part in this case.

OPINION

McCabe, J.

The appellee, as the administrator of the estate of one James M. Jack, deceased, sued the appellant to recover damages alleged to have been sustained by the widow and children of said decedent, resulting to them on account of his death, caused by the alleged negligence of the appellant.

The issues formed were tried by a jury, resulting in a special verdict, upon which the court rendered judgment in favor of the plaintiff for the damages assessed, $ 5,000, over appellant's motion for a new trial. Error is assigned here, among other things, upon the action of the court in overruling that motion.

Among the reasons assigned in the motion for a new trial is that the verdict is not sustained by sufficient evidence.

There were two paragraphs in the complaint, one charging a negligent killing and the other a willful killing. The evidence is in the record, and it wholly fails to establish a willful killing. Moreover, the appellee does not contend or claim that it does. The appellant contends that it is equally insufficient to establish a negligent killing. This action is purely statutory, and the statute that authorizes it does so upon the condition that the facts are such that the deceased might have maintained the action had he lived for the injury resulting from the same act or omission. R. S. 1894, section 285 (R. S. 1881, section 284).

The injury and death were caused by a collision of one of the appellant's trains with the appellee's intestate at a highway or street crossing on the appellant's railroad in the town of Fountaintown, in Shelby county. The train was coming from the east.

There was only one living eye-witness as to the care exercised by the decedent, and the testimony of that witness is all there is in the record to prove one of the indispensable elements of the plaintiff's cause of action.

The defendant's negligence, the plaintiff's freedom from negligence, and the proximate injury resulting from the defendant's negligence, are essential elements of the plaintiff's cause of action in cases of the character of the one now before us. Lake Erie, etc., R. R. Co. v. Stick, 143 Ind. 449, 41 N.E. 365.

The plaintiff must allege and prove in such cases his freedom from negligence contributing to his injury as much as he must allege and prove the defendant's negligence. Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31, 2 N.E. 138; Indiana, etc., R. W Co. v. Hammock, 113 Ind. 1, 14 N.E. 737; Ohio, etc., R. W. Co. v. Hill, Admr., 117 Ind. 56, 18 N.E. 461; Cincinnati, etc., R. W. Co. v. Howard, 124 Ind. 280 (8 L. R. A. 593, 24 N.E. 892); Louisville, etc., R. W. Co. v. Stommel, 126 Ind. 35, 25 N.E. 863; Mann v. Belt R. R., etc., Co., 128 Ind. 138, 26 N.E. 819; Pennsylvania Co. v. Meyers, 136 Ind. 242, 36 N.E. 32; Lake Erie, etc., R. R. Co. v. Stick, supra. The appellant's railroad runs through said town east and west, and the street on the railroad crossing on which decedent was injured and killed runs north and south. The decedent was familiar with all the surroundings and the running of the trains. There was a train due there from the west about the time the decedent attempted to cross the railroad, and the train that injured and killed him was due there from the east twenty minutes before it came.

The only eye-witness as to the care exercised by the decedent, as before observed, was one John A. Lamb, who testified on behalf of the plaintiff, the substance of all of whose testimony is as follows: "I work in the grain business for T. L. Smith, and have lived in the town eighteen years; I was standing in my door at my house when I heard the train; I was about seventy steps from where he was killed, east of the crossing; I was standing about thirty feet from the main track, just south of the switch track, which is south of the main track; I saw a man in a top-buggy, and the top was up, driving north; he was on the street farthest west in the town, called the Greenfield road; I first saw him about twenty-seven steps south of the railroad; he was driving in a very slow walk; he was bent over in his buggy looking to the west." Witness was asked: "Now, did you see the train strike the buggy?" Answer: "I saw the buggy go through the fence; it made a kind of a crash; couldn't see the man at the time he was struck; there was a dust raised." The following question was asked and answered as follows: "Now, could you see, from the place you were, Mr. Jack, or the man in the buggy, all the time from the time you first saw him until he was struck, or was your view cut off by a house there?" Answer: "My view was cut off for a few feet by the scale-house; the train whistled for the station, and I stepped out on the main track to see if my cow was on the track; and I didn't see her, and stepped back and went west a few feet; the train was about a quarter [of a mile] from the town when it whistled; I live in the second house east of the Greenfield road, just across the alley from the first house, and south of the railroad."

On cross-examination he said: "Mr. Jack was about seventy steps south of Cohee's fence, running east and parallel with and south of the railroad; he was twenty-seven steps from the railroad when I first saw him, or somewhere close there; I thinks to myself, 'Old fellow, if you don't stop, you will get into it;' as long as I saw him he was looking to the west; the scale-house obstructed my view until he passed it, and when I saw him again he was still looking to the west; he had lived up north of there a mile for two years; he came to Fountaintown once a week; he had been a farmer; I could see both him and the engine; he was looking to the west all the time I saw him; when I heard the train whistle I saw the steam."

This is all the evidence there was to establish that the decedent exercised ordinary care to avoid the injury. We are...