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48 Ind. App. 262

Harmon v. Foran

Indiana Court of Appeals

Decided May 18, 1911

Indiana Court of Appeals · decided 1911-05-18

<p>1. Trial. — Verdict.—Interrogatories.—Conflict.—Answers to the interrogatories to the jury control the general verdict only when they are in irreconcilable conflict therewith under any supposable evidence admissible within the issues, p. 266.</p> <p>2. Railroads. — Crossing Accidents. — Violating Ordinances. — BacJcing Engine toithout Light or Lookout. — Interrogatories.—Answers to interrogatories to the jury that the plaintiff looked and listened for an approaching train before going upon the defendant’s railroad track on a street crossing, that he neither saw nor heard any, that he was prevented therefrom by the noise of another train, and the dark and rainy night, and that because of an embankment and curve he could not see the approaching engine before he reached the point where he was struck, are not in conflict with a general verdict for the plaintiff, p. 266.</p> <p>3. Railroads. — Crossing Accidents. — Instructions.—In an action t>y a pedestrian against a railroad company for damages sustained at a street crossing, an instruction that the plaintiff, to recover, must establish by a preponderance of the evidence (1) that he received the injuries as alleged in the complaint, and (2) that such injuries were the immediate and proximate result of defendant’s carelessness and negligence, as alleged in the complaint, and that if the plaintiff so failed to establish either, he could not recover, is correct, and where followed by an instruction as to the effect of contributory negligence, is not prejudicial, p. 267.</p> <p>4. Trial. — Instructions.—Row Considered. — Instructions should be considered as a whole; and if they fairly present the law of the case they will not be held prejudicial, p. 268.</p> <p>5. Railroads. — Crossing Accidents. — Ordinances.—Instructions.— In an action for damages sustained at a street crossing because of defendant railroad company’s violation of a city ordinance, an instruction that the plaintiff, in the absence of knowledge to the contrary, had a right to assume that defendant would obey the city ordinance in reference to the moving of its trains, is correct. p. 268.</p> <p>6. Railroads.— Crossing Accidents.— Ordinances.— Lookout on “Rear End of Locomotive.” — Instructions.—In an action against a railroad company for injuries at a street crossing caused by defendant railroad company’s running backwards a locomotive and tender without a lookout on the rear of the tender, in violation of a city ordinance requiring all companies so operating trains to provide a watchman on the “rear end of such locomotive, car, or train of cars,” an instruction that it was the defendant’s duty when it ran an engine and tender backwards to station a watchman on the rear of the tender, is not objectionable, p. 268.</p> <p>7. Railroads. — Grossing Accidents. — Contributory Negligence. — ■ Presumptions. — In an action for damages sustained at a street crossing, because of defendant railroad company’s violation of a city ordinance, an instruction that the presumption is that when a person approaches a railroad crossing along a street or highway, and is injured in attemiiting to cross, ho is not guilty of contributory negligence, is incorrect, there being no presumption in such case. Nichols v. Baltimore, etc., R. Co., 33 Ind. App. 229, Pittsburgh, etc., R. Co. v. Reed, 36 Ind. App. 67, Cleveland, etc., R. Co. v. Schneider, 40 Ind. App. 38, and Wamsley v. Cleveland, etc., R. Co., 41 Ind. App. 147, partly overruled, pp. 209,270.</p> <p>8. Negligence. — Contributory.—Burden of Proof. — Contributory negligence constitutes a defense; and the burden is on defendant to prove such defense by a preponderance of the evidence, p. 269.</p> <p>9. Railroads. — Crossing Accidents. — Contributory Negligence.— Instructions. — Curing by Interrogatories. — In an action for injuries sustained by a traveler at a street crossing, answers to the interrogatories to the jury that the plaintiff was not guilty of contributory negligence do not cure an erroneous instruction that the plaintiff is presumed to be free from contributory negligence, such answers probably being influenced by such erroneous instruction, pp. 270, 271.</p>

Relies on Grand Trunk Western Railway Co. v. Reynolds · Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Reed · Nichols v. Baltimore & Ohio Southwestern Railroad

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1911-05-18

How this case has been cited

Cited by 25 later decisions — most recently March 1938 · most notably Virgin v. Lake Erie & Western Railroad (1913), 52 Ind. App. 156 - Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Van Laningham (1912)

25 state decisions

200191119201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1On Petition for Rehearing.

Ibach, J.

¶27. Appellee in his brief on petition for rehearing suggests that the original opinion makes no reference to the eases of Nichols v. Baltimore, etc., R. Co. (1904), 33 Ind. App. 229, Pittsburgh, etc., R. Co. v. Reed (1905), 36 Ind. App. 67, and Cleveland, etc., R. Co. v. Schneider (1907), 40 Ind. App. 38, upon the authority of which the instruction was given and upon which the case was reversed. These eases are in conflict with the Supreme Court decisions cited in the opinion. In the case of Grand Trunk, etc., R. Co. v. Reynolds (1911), 175 Ind. 161, the Supreme Court has expressly disapproved the cases of Nichols v. Baltimore, etc., R. Co., supra, and Pittsburgh, etc., R. Co. v. Reed, supra,and held them erroneous on the proposition involved in instruction seven in the present case, setting forth fully the reasons for their holding. In Cleveland, etc., R. Co. v. Schneider, supra,the objection made to the instruction in the present case seems not to have been involved, but the opinion in that case, and the opinion in the case of Wamsley v. Cleveland, etc., R. Co. (1908), 41 Ind. App. 147, so far as they are, or may be construed to be, in conflict with the opinion in the present case, are overruled.

¶3*2719.*270We adhere to our opinion that the giving of the erroneous *271instruction seven was not made harmless to appellant by the answers to interrogatories, for the reasons stated in the original opinion. The jury found the answers to interrogatories after the instruction complained of was given, and may have been led to answer them as it did, because influenced by the presumption that appellee was not guilty of contributory negligence, which would include the presumption that he looked and listened at proper times and places, although from the evidence, unaided by presumption, different answers might have been returned.

¶4Appellee has furnished us with a brief on petition for rehearing showing much care, and we have for the second time gone into the case very thoroughly, but find no cause to modify our former judgment.

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