New York Central R.R. Co. v. Dyer, Admr.

14 N.E.2d 718, 214 Ind. 708, 1938 Ind. LEXIS 242

• Court: Indiana Supreme Court
• Decided: May 11, 1938
• Docket: No. 27,003.
• Status: Published

Opinion

Fansler, J.

—At about 3:00. o’clock in the morning, Margaret Warner and her husband were returning to their home in the city of Petersburg. At a highway crossing, within the city limits and with the location of which they were both thoroughly familiar, their automobile, which Mr. Warner was driving, collided with the side of a freight train, which was passing over the crossing, and both were killed. The highway was paved, and the warning signs were substantially the same as those described in New York Central Railroad Co. v. Casey, ante 464, decided at this term. The appellee brought this action against the appellant to recover damages for the death of Mrs. Warner, charged to have been due to appellant’s negligence. It is not charged that appellant violated any statute. The theory of the complaint is similar to that in the case referred to. There was judgment for the appellee.

We need not notice specifically the errors assigned. The facts are in all substantial respects like those in the Casey case, and, as in that case, no negligence on the part of the appellant was established. The essential facts are not in dispute, and will not change.

Upon authority of New York Central Railroad Co. v. Casey, supra, the judgment is reversed, with instructions to enter judgment for the appellant, defendant.