The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Clark
| Decision Date | 01 November 1912 |
| Docket Number | 7,711 |
| Citation | 99 N.E. 777,52 Ind.App. 646 |
| Parties | THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY ET AL. v. CLARK, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Rehearing denied January 31, 1913.
Transfer denied March 6, 1913.
From Clay Circuit Court; John M. Rawley, Judge.
Action by James M. Clark, administrator of the estate of Selma Clark, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company and others. From a judgment for plaintiff, the defendants appeal.
Affirmed.
Louis D. Leveque, A. J. Kelly, A. W. Knight, George A. Knight, L J. Hackney, and Sullivan & Knight, for appellants.
S. M. McGregor and S. A. Hays, for appellee.
This was an action to recover damages from appellants on account of the death of Selma Clark, appellee's decedent, alleged to have been the result of injuries caused by appellants' negligence on November 1, 1906.
Cleveland, etc., R. Co. v. Clark (1912), 51 Ind.App. 392, 97 N.E. 822, is a companion case to this, being an action for damages caused by the negligent killing of Maggie Clark in the same accident. The women were sisters-in-law, and were riding in a buggy which was struck by a construction train at the crossing of a public highway with appellant railway company's tracks. Selma Clark was driving. Maggie Clark was very severely crushed about the limbs, and died in a few days. Selma Clark, it is alleged, received injuries which caused her death on April 24, 1908. The complaint in this case, except that it sets out the facts of the occurrence more in detail, is almost an exact copy of the second paragraph of the complaint in the other case. The actionable negligence averred is practically the same. The former complaint was held by this court to be good as against all the defendants. The evidence tending to show that appellant railway company was negligent in maintaining a defective highway crossing, and that appellant Wabash Constructon Company was negligent in the operation of its construction train, and that such negligence on the part of these appellants was the proximate cause of the collision between the train and the buggy, is likewise practically the same as that considered in the former case, and we have nothing to add to what was said in the former opinion concerning this evidence. The sufficiency of the complaint in the present case, and the sufficiency of the evidence in the present case to show negligence on the part of appellants which was the proximate cause of the collision, were conclusively determined against appellants' contentions by the opinion in the former case.
It is urged that the evidence in the case at bar is not sufficient to prove that appellee's decedent was injured at all by the collision, or that, if injured, her injuries caused her death. Many witnesses, including members of her family, and neighbors who saw her frequently, testified that before the accident she was strong and healthy, and did all her own work, including her washing and ironing; that after the accident, up to the time of her death, she complained of pains in her side and back almost continuously; that she became greatly emaciated, and was able to do but very little work, scarcely her cooking. Mrs. Strachn testifies that the morning after the accident decedent said that she was hurt down her left shoulder and side, and witness looked and saw that her shoulder was discolored. Dr. Siner, her physician, who was called to attend her the night of the accident because of her nervousness, and who attended her frequently up to her death, testified that in his opinion she was injured internally by the accident, and that her death was caused directly by peritonitis caused by these internal injuries. It is true that decedent was seen running down the road almost immediately after the accident, and appellants introduced evidence tending to show that decedent got out of the buggy before it was struck, but the jury, in answer to interrogatories, stated that it believed she was thrown out, and there was evidence tending to support such a finding. Kate Hardesty, who saw her immediately after the collision, testified that there was dirt on her black coat, as if she had been down. We think that the evidence that she received injuries in the collision which caused her death is sufficient to sustain the verdict on this point.
The objections made to instructions are, in substance, those made to the instructions given in the Maggie Clark case. Instructions Nos. 8, 9, 12 and 14 given at plaintiff's request, were given in that case, and the same objections here urged to them were considered on the appeal to this court. Instruction No. 15 in the present case is the same as instruction No. 15 set out in the opinion in the former case, with the omission of the word "wrongful," which occurs twice in the instruction there set out, and the objections made to it are there answered. There was no error in giving instructions Nos. 2 1/2 and 10, when they are considered in connection with all the other instructions given.
Instruction No. 7, as it appears in the transcript, contains a clause which reads, "and if such negligence results in injury to a person who was rightfully using the highway without of such and in the exercise of due care for his own protection." Appellants urge that such an instruction is meaningless and unintelligible to the jury. Appellee gives an explanation which we think the true one, that the present reading is merely a clerical error in copying, and that the instruction as read to the jury contained the words "without fault," instead of "without of such." But if it had been given as copied in the record there would be no reversible error, for where a mistake in the...
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