The Ohio and Mississippi Railway Company v. Buck
| Decision Date | 06 February 1892 |
| Docket Number | 15,011 |
| Citation | 30 N.E. 19,130 Ind. 300 |
| Parties | The Ohio and Mississippi Railway Company v. Buck |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
Judgment affirmed, with costs.
W. H De Wolf, E. H. De Wolf, W. M. Ramsey, L. Maxwell and R Ramsey, for appellant.
W. A Cullop, C. B. Kessinger, W. F. Townsend and J. Wilhelm, for appellee.
This is an action for personal injuries sustained at a railway crossing in the city of Vincennes, in Knox county, Indiana. Issues were joined, and a trial had resulting in a verdict and judgment in favor of the appellee for $ 4,000. Appellant filed a motion for new trial, which was overruled and exceptions reserved.
Errors are assigned, first, that the court erred in overruling appellant's motion to strike out parts of appellee's complaint, and, second, that the court erred in overruling appellant's motion for new trial.
The question of appellant's negligence, and of the appellee's contributory negligence, is discussed in detail and at length.
We have read the evidence, and have no doubt of the fact that there was evidence to support a finding that the appellant was negligent, and that the appellee was free from contributory negligence. That there may have been a preponderance of the evidence to the contrary, or that the jury might, upon some basis of reasoning, reached a different conclusion, can make no difference, for if there is evidence fairly tending to support the verdict it must stand. There was evidence to show that at the point of the injury the railroad track of the appellant crossed a street in the city of Vincennes; that there was a side-track south of the main track, from which direction appellee approached the crossing. There were a number of freight or box cars standing on the switch south of the main track, some on either side of the street, and they obstructed the view of the appellee as he approached the crossing.
There was a city ordinance prohibiting the running of trains at a speed in excess of five miles an hour, and prohibiting the sounding of the whistle. There was evidence tending to prove that the train which ran against the appellee was at the time running in excess of five miles an hour,--the evidence of some tending to show that the train was running at the rate of ten miles an hour,--and that employees in charge of it did not ring the bell or give any other signal. It is contended by counsel for appellant that this ordinance is invalid for certain reasons, but whether it is valid or not can make no difference, for, if not valid, the appellant was bound to give the statutory signals, and there was evidence from which the jury may have well found that such signals were not given. There was evidence fully justifying the jury in finding that appellant was guilty of negligence.
It is earnestly contended that the evidence fails to show that the appellee was not guilty of contributory negligence; that it appears that he did not use due caution in approaching the crossing and entering upon the track. The appellee testifies that he stopped his team and looked and listened for a train at a point which he fixes at sixty to eighty feet from the track. Other witnesses differ from him to some extent as to the distance from the railroad track when he stopped. He says he could not see or hear any train; that he immediately started on and continued to look to the right and to the left for a train, and to listen for one; that he did not see or hear an approaching train until his horses were going upon the main track and he passed the end of the freight car,--then he saw the train; that the quickest way off the track, and to avoid danger at that time, was to cross the track, which he attempted to do as quickly as possible, using the whip he held in his hand upon his horses; that when he first saw the train he thought it was thirty to sixty feet from him, and not near enough to strike him, but it did. He testifies that his hearing and eyesight...
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