Wabash R. Co. v. Keister

• Citation: 163 Ind. 609,67 N.E. 521
• Parties: WABASH R. CO. v. KEISTER.
• Decision Date: 26 May 1903
• Court: Supreme Court of Indiana

163 Ind. 609

67 N.E. 521

WABASH R. CO.

v.KEISTER.¹

Supreme Court of Indiana.

May 26, 1903.

Appeal from Circuit Court, Warren County; D. H. Chase, Judge.

Action by George Keister, as administrator of Charles R. Keister, against the Wabash Railroad Company. From a judgment in favor of plaintiff, defendant appealed to the Appellate Court. Case transferred to the Supreme Court, under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590, c. 259). Reversed.Stuart, Hammond & Simms, James McCabe, and E. F. McCabe, for appellant C. V. McAdams and F. C. Rabb, for appellee.

MONKS, C. J.

This was an action brought by the appellee, as the administrator of the estate of Charles R. Keister, deceased, to recover damages for the death of his decedent, resulting from the alleged negligence of the appellant in running one of its passenger trains against the deceased at a highway crossing. The appellant's demurrer for want of facts was sustained to the first paragraph of the complaint, but overruled as to the second and third paragraphs thereof. The appellant answered in general denial of the complaint. The cause was tried by a jury, and a general verdict returned in favor of the appellee. With the general verdict were returned answers to interrogatories submitted by the court at the request of the parties. Over the appellant's motion for judgment on the answers of the jury to the interrogatories, notwithstanding the general verdict, the court rendered judgment on the general verdict.

The only error assigned, and not waived, calls in question the action of the court in overruling said motion for judgment on the answers to the interrogatories.

The general verdict determined each and every question essential to appellee's right of recovery in favor of the appellee, and every reasonable presumption will be indulged in its favor. Nothing will be presumed in aid of the answers to the interrogatories. If, however, the facts found in answer to the interrogatories are in irreconcilable conflict with the general verdict, the court erred in overruling appellant's motion for a judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict. Morford v. Chicago, etc., R. Co., 158 Ind. 494, 495, 63 N. E. 857.

Appellant insists that the answers to the interrogatories show (1) that the deceased was guilty of contributory negligence; and (2) that appellant's alleged negligence was not the cause of the injury. If either of said contentions is correct, the court erred in overruling said motion, and the judgment must be reversed.

Upon the question of the contributory negligence of the deceased, the findings of the jury disclose the following: At the crossing where the deceased was injured, and for some distance therefrom each way, appellant's railroad ran in a northeasterly and southwesterly direction. The highway on which the deceased was traveling at the time of the accident, as it approached the railroad from the northwest, ran in a southeasterly direction, and at a point about 80 feet from the track made a slight turn to the right, so as to cross the railroad track nearly at right angles. Appellant had erected at the south side of the crossing a signboard having thereon the words “Railroad Crossing.” Said sign, being on a post 9 feet higher than the level of the railroad track, was visible to the deceased for a distance of 276 feet, and the words thereon could have been read by him at a distance of 60 to 75 feet from the railroad track. From 1,100 to 1,200 feet southwest of said crossing (being the direction from which the train which struck the deceased approached said crossing), appellant's track was on a straight line, without any trees or buildings on the right of way north of the track; but north of said right of way, and west of said highway, there was a grove. The highway approaching the track from the north (the direction from which the deceased came) was, for a distance of about 80 feet, substantially on a level with the railroad track. The grass and weeds on appellant's right of way had not been cut at the time of the accident, but the findings show that this did not prevent the deceased from seeing the approaching train in time to avoid the injury which resulted in his death. The train that struck the deceased consisted of an engine, tender, and four coaches, and was running in a northeasterly direction at about 30 miles an hour. The deceased was traveling at about 3 or 4 miles an hour. The engine and tender weighed about 213,320 pounds. The height of the smokestack of said engine was about 15 1/2 feet above the level of the track. Said engine, as it approached said crossing, ran with a full head of steam, until the steam was shut off just before reaching the crossing; but, while so running, smoke was not emitted from said engine in the air many feet above the top of the smokestack. The deceased was riding along said highway in an empty wagon, drawn by two horses. sitting on a spring seat, and while so seated his eyes were about 9 feet above the level of the highway. Said horses were gentle and easily managed, and the deceased was accustomed to driving and working with them. He was a man 21 or 22 years of age, of ordinary intelligence, in good health, of ordinary physical strength, had good eyesight, could read, and was accustomed to handling horses. He had always resided in Warren county, Ind., where said injury occurred, and for five months before the accident had resided about 2 miles from said crossing. As he approached said railroad crossing, he could, on coming within 60 or 75 feet of the track, by looking, have seen that he was approaching a railroad track. As the deceased approached said railroad crossing, on coming to a point 45 feet from the railroad track, and thence all the way to said track, he could, by carefully looking, have seen said train as it approached said crossing. When the deceased was 45 feet from the railroad track, the train that struck him was 450 feet from the crossing; when he was 35 feet from said crossing, said train was 350 feet from it; and, when he was 25 feet from said crossing, said train was 250 feet from it. The deceased was seen by the fireman of the approaching train, who at once gave warning to the engineer, and said engineer immediately on receiving such warning applied the emergency brakes, and gave the danger signals, and used his best efforts to bring said train to a stop before striking the deceased. Before driving upon the railroad track, and when about 18 feet from the track, the deceased saw the train, and, seeing it, urged the horses he...