Wabash Railway Co. v. Evans ( 1930 )

Nichols, J.

Action by appellee to recover damages for personal injuries sustained at the intersection of Byron street and the right of way of the Wabash Railway Company in the city of Huntington, Indiana, at a time when appellee was attempting to cross appellant’s line of railway.

To the complaint in one paragraph, appellant filed an answer in denial. There was a trial by jury and a verdict was returned in favor of appellee for $2,000.

Appellant’s motion for judgment on answers to interrogatories which were submitted to the jury was overruled. Appellant’s motion for a new trial was overruled. Judgment was rendered in favor of appellee on the verdict for $2,000, and this appeal followed.

The errors relied upon for reversal are the court’s action in overruling appellant’s motion for judgment on the answers to interrogatories, and in overruling appellant’s motion for a new trial.

It appears by answers to interrogatories that, at the time of the injury, appellee was proceeding in his coupe northward on Byron street; that he stopped his car just south of the tracks at a point 40 or 50 feet from the main track; that at that time, appellee had a view of the main track from the center of Byron street for a distance of 35 feet; that appellee was going five miles per hour and could have stopped his car within two feet; that appellee was familiar with the crossing; that appellant’s servants were intending to stop at the water plug 250 feet west of the crossing; that the locomotive bell was ringing, but appellee could not have heard the same by the use of ordinary and reasonable care; that no lighted lantern was displayed on the rear box car and none was waved; that the whistle was blown not less than 80 rods from the crossing, which signal appellee could not have heard by the use of ordinary care; and that the brakeman yelled no warning to appellee.

The complaint alleges negligence in the operation of the train. There is no conflict between the answers and the general verdict, which is amply sustained by the evidence. The instructions are so clearly correct that we deem it unnecessary to discuss them. There is no merit in this appeal.

The judgment is affirmed, and five per cent damages are assessed.