The Pittsburgh, Cincinnati, Chicago and St. Louis Railway v. Burton

• Decision Date: 16 November 1894
• Docket Number: 16,364
• Parties: The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Burton, Administratrix
• Court: Indiana Supreme Court

38 N.E. 594

139 Ind. 357

The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Burton, Administratrix

No. 16,364

Supreme Court of Indiana

November 16, 1894

Original Opinion of April 17, 1894, Reported at: 139 Ind 357.

OPINION

Hackney, C. J.

Again the appellant urges the proposition that Burton was guilty of contributory negligence upon the facts found by the jury. A decision of the question presented depends upon the construction of the finding rather than upon any differences between counsel and the court as to the law of contributory negligence. The finding is that from which we quoted first in the original opinion. It was found that the view and the hearing of an approaching train was cut off from Burton for 375 feet before reaching the railway tracks; that he proceeded slowly until his horses passed the end of the box car, when he checked them, leaned forward to get a view to the north, unobstructed by the car, and, not seeing or hearing the approaching train, and being unable to see more than one hundred feet up the main track, he started forward "and when he had passed the west side of the car * * he looked north and saw the * train approaching * * at forty-five to fifty miles an hour * * * when he instantly pulled vigorously upon his lines and endeavored to stop his horses that were by that time ten feet from defendant's main track, but that his team had by this time discovered the said approaching train and become greatly frightened and unmanageable;" then followed his efforts to keep the team from the main track. In this connection we restate the facts found, that the box car stood 34 feet and 9 inches from the main track.

Counsel for the appellant endeavor to maintain that, under the facts stated, Burton proceeded 11 feet and 9 inches from the car before again looking north, allowing 10 feet from the horses to the main track and 13 feet from the team and vehicle back to Burton. So construing the facts, it is claimed that it was negligence to proceed 11 feet and 9 inches in plain view of the train without looking to see if it was approaching. With this construction of the facts, we did not and do not now agree. The language of the finding is not that "when he had passed the car and his horses had gone to within ten feet of the main track he looked and then pulled upon his lines." The sense of the language of the finding is that "as soon as" he had passed he looked or, "...