Lake Erie & Western Railway Co. v. Sams

Indiana Court of Appeals

Lake Erie & Western Railway Co. v. Sams

127 N.E. 566, 73 Ind. App. 397, 1920 Ind. App. LEXIS 134

CourtIndiana Court of Appeals

DecidedJune 4, 1920

DocketNo. 10,323

StatusPublished

This text of 127 N.E. 566 (Lake Erie & Western Railway Co. v. Sams) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lake Erie & Western Railway Co. v. Sams, 127 N.E. 566, 73 Ind. App. 397, 1920 Ind. App. LEXIS 134 (Ind. Ct. App. 1920).

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Opinion

Remy, J.

Action by appellee to recover damages for the death of John Sams, who was killed as a result of a collision by an automobile, in which he was riding, with appellant’s train at a highway crossing. Trial resulted in a verdict and judgment for $2,500.

The action of the trial court in overruling the motion for new trial is the only error assigned; and the only questions presented are: (1) The alleged error in refusing to give instructions numbered 21 and 22 requested by appellant; (2) the giving of instruction No. 15 by the court on its own motion; and (3) that the damages are excessive.

The evidence discloses that the crossing at which decedent lost his life was such that approaching trains were not in plain view of travelers coming from the north on the highway until such travelers were within twelve or fifteen feet of the crossing; that decedent was riding in the back seat of an automobile with Clyde Johnson, the owner thereof, which machine was being operated by one Ross Johnson, a brother of Clyde Johnson; that the front end of the automobile, which was approaching from the north, was on the railroad track before the train was discovered by decedent, who had looked and listened for trains. It appears from the evidence that decedent and Clyde Johnson were partners in the dairying business, and that at the time of the collision they, with Ross Johnson, were returning from a public sale of dairy cattle, which sale they had attended, though they had not gone to purchase, but [399]*399merely to see the cattle that were sold. It does not appear that Ross Johnson was in the dairying business with his brother and the decedent, nor that he was in any way interested in that business. He had gone to the sale merely as the companion of the other two men.

1. By its tendered instruction No. 21, appellant sought to have the court instruct the jury that the negligence of the driver of the automobile would be imputed to appellee, if they found from the evidence that the parties occupying the automobile were, at the time, all upon a common business errand; and by its instruction No. 22 asked that the jury be instructed as to the duty of appellee when the automobile approached the crossing. There was no error in refusing to give said tendered instructions, since neither, in the form drawn, was applicable to the evidence.

2-3. Instruction No. 15, given by the court on its own motion, is as follows: “Both the plaintiff’s decedent and the defendant railway company had an equal right to cross the street at the point where the accident happened, and the law imposes upon both parties the duty of using reasonable care and precaution to avoid accident and danger.”

It will be observed that this instruction does not state that the parties had equal rights at the crossing, but that each had an equal right to cross. Under the law, if both desired to use the highway at the same time, appellant with its train had the priority of passage, upon giving due notice of its approach. Virgin v. Lake Erie, etc., R. Co. (1913), 55 Ind. App. 216, 101 N. E. 500. While we cannot commend the instruction, yet, when taken in connection with other instructions given by the court, it could not have been harmful to appellant.

[400]*4004. [399]*399It is urged by appellant that the damages assessed by the- jury are excessive for the reason, as contended, that the evidence does not show that the decedent was [400]*400engaged in any business from which he received any salary or income, nor that he had ever contributed anything to the support of his family. The evidence shows that the decedent at the time of his death was a farmer, and was jointly interested with Clyde Johnson in the dairying business; that two weeks before his death he had moved with his family, consisting of a wife and a fourteen year old child, from his farm to Valparaiso; that sometime previous to leaving the farm he had injured his hand, and was unable to perform manual labor, but was able to look after his business; that he was ordinarily able to work and had worked right along; that he was fifty-four years of age, with an expectancy of eighteen years. Although there is no evidence showing the earning capacity nor the income of the decedent, nevertheless it is shown that he was a farmer and dairyman, was able to look after his business, and was living with his family. The evidence shows that in the decedent’s death his family sustained a pecuniary loss, and we hold that under the evidence the damages assessed are not excessive. Malott v. Shimer (1899), 153 Ind. 35, 54 N. E. 101, 74 Am. St. 278; Missouri, etc., R. Co. v. Moffatt (1899), 60 Kan. 113, 55 Pac. 837, 72 Am. St. 343; Voelker v. Hill-O’Meara Construction Co. (1910), 153 Mo. App. 1, 131 S. W. 907; Baltimore, etc., R. Co. v. State (1865), 24 Md. 271.

We find no reversible error. Judgment affirmed.

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Remy, J.

Action by appellee to recover damages for the death of John Sams, who was killed as a result of a collision by an automobile, in which he was riding, with appellant’s train at a highway crossing. Trial resulted in a verdict and judgment for $2,500.

The action of the trial court in overruling the motion for new trial is the only error assigned; and the only questions presented are: (1) The alleged error in refusing to give instructions numbered 21 and 22 requested by appellant; (2) the giving of instruction No. 15 by the court on its own motion; and (3) that the damages are excessive.

The evidence discloses that the crossing at which decedent lost his life was such that approaching trains were not in plain view of travelers coming from the north on the highway until such travelers were within twelve or fifteen feet of the crossing; that decedent was riding in the back seat of an automobile with Clyde Johnson, the owner thereof, which machine was being operated by one Ross Johnson, a brother of Clyde Johnson; that the front end of the automobile, which was approaching from the north, was on the railroad track before the train was discovered by decedent, who had looked and listened for trains. It appears from the evidence that decedent and Clyde Johnson were partners in the dairying business, and that at the time of the collision they, with Ross Johnson, were returning from a public sale of dairy cattle, which sale they had attended, though they had not gone to purchase, but [399]*399merely to see the cattle that were sold. It does not appear that Ross Johnson was in the dairying business with his brother and the decedent, nor that he was in any way interested in that business. He had gone to the sale merely as the companion of the other two men.

1. By its tendered instruction No. 21, appellant sought to have the court instruct the jury that the negligence of the driver of the automobile would be imputed to appellee, if they found from the evidence that the parties occupying the automobile were, at the time, all upon a common business errand; and by its instruction No. 22 asked that the jury be instructed as to the duty of appellee when the automobile approached the crossing. There was no error in refusing to give said tendered instructions, since neither, in the form drawn, was applicable to the evidence.

2-3. Instruction No. 15, given by the court on its own motion, is as follows: “Both the plaintiff’s decedent and the defendant railway company had an equal right to cross the street at the point where the accident happened, and the law imposes upon both parties the duty of using reasonable care and precaution to avoid accident and danger.”

It will be observed that this instruction does not state that the parties had equal rights at the crossing, but that each had an equal right to cross. Under the law, if both desired to use the highway at the same time, appellant with its train had the priority of passage, upon giving due notice of its approach. Virgin v. Lake Erie, etc., R. Co. (1913), 55 Ind. App. 216, 101 N. E. 500. While we cannot commend the instruction, yet, when taken in connection with other instructions given by the court, it could not have been harmful to appellant.

[400]*4004. [399]*399It is urged by appellant that the damages assessed by the- jury are excessive for the reason, as contended, that the evidence does not show that the decedent was [400]*400engaged in any business from which he received any salary or income, nor that he had ever contributed anything to the support of his family. The evidence shows that the decedent at the time of his death was a farmer, and was jointly interested with Clyde Johnson in the dairying business; that two weeks before his death he had moved with his family, consisting of a wife and a fourteen year old child, from his farm to Valparaiso; that sometime previous to leaving the farm he had injured his hand, and was unable to perform manual labor, but was able to look after his business; that he was ordinarily able to work and had worked right along; that he was fifty-four years of age, with an expectancy of eighteen years. Although there is no evidence showing the earning capacity nor the income of the decedent, nevertheless it is shown that he was a farmer and dairyman, was able to look after his business, and was living with his family. The evidence shows that in the decedent’s death his family sustained a pecuniary loss, and we hold that under the evidence the damages assessed are not excessive. Malott v. Shimer (1899), 153 Ind. 35, 54 N. E. 101, 74 Am. St. 278; Missouri, etc., R. Co. v. Moffatt (1899), 60 Kan. 113, 55 Pac. 837, 72 Am. St. 343; Voelker v. Hill-O’Meara Construction Co. (1910), 153 Mo. App. 1, 131 S. W. 907; Baltimore, etc., R. Co. v. State (1865), 24 Md. 271.

We find no reversible error. Judgment affirmed.

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127 N.E. 566, 73 Ind. App. 397, 1920 Ind. App. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-erie-western-railway-co-v-sams-indctapp-1920.

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