Opinion
No. 13,062.
Filed October 10, 1928.
1. PLEADING — Complaint — Damages for Death — Sufficiency. — A complaint for damages for the death of a mail carrier is sufficient on demurrer although it contains no allegation that the dependents of the decedent were not receiving compensation from the government as provided by law, since, if that were the fact, it should be presented by answer. p. 53.
2. TRIAL — Instructions — Refusal to Give. — There is no error in refusing to give a requested instruction which is sufficiently covered by an instruction given. p. 53.
3. NEGLIGENCE — Choice between Hazards — Contributory Negligence — Instruction. — An instruction that when a person is, by the negligence of another, placed in a position of peril, and is compelled to make a choice between hazards and is injured, the fact that he would not have been injured had he chosen the other hazard would not, of itself, show contributory negligence, correctly stated the law on that subject. p. 53.
4. RAILROADS — Crossing Accident — Answers to Interrogatories — Motion for Judgment. — In an action against a railroad company for damages for the death of plaintiff's decedent, the court properly overruled the defendant's motion for judgment on the jury's answers to interrogatories, although the jury found that plaintiff's decedent, killed while driving an automobile over a railroad crossing, could have seen the train that killed him approaching from the east if he had looked when twenty-seven feet from the track, as the conditions and circumstances, at that particular time, may have necessitated his looking in the other direction. p. 54.
From Huntington Circuit Court; Sumner Kenner, Judge.
Action by Raymond O. Bixby as administrator of the estate of Charles E. Knee, deceased, against the Wabash Railway Company. From a judgment for plaintiff, the defendant appeals. Affirmed. By the court in banc.
Fred H. Bowers, Milo M. Feightner and Lee M. Bowers, for appellant.
Charles R. Haller and Sapp, Sees Glenn, for appellee.
This is an action by appellee as administrator of the estate of Charles E. Knee, on behalf of the next of kin of his decedent, to recover damages for 1. the death of the latter, alleged to have been caused by the negligence of appellant. The complaint discloses that, at the time of the accident and death of the decedent, he was in the employ of the United States as a mail carrier. Appellant contends the court erred in overruling its demurrer to the complaint, because it is not alleged the dependents of the decedent were not receiving compensation as provided by law for employees of the government. There is no merit in this contention. If such dependents were, in fact, receiving compensation from the government, and appellant thought that was a bar to the action, it should have been presented by answer.
Appellant's instruction 7, which the court refused to give, related to the effect of concurrent negligence, and was 2. sufficiently covered by instruction 12 given at the request of appellant.
Instructions 22 and 23 tendered by appellant were to the effect that the fact that a railroad maintains gates which are up at the time a traveler is approaching a crossing does not relieve such traveler from all care for his safety, and that, although the gates are up, the traveler must use his senses of hearing and sight to determine whether a train is approaching. These instructions were also covered by those given by the court.
Instruction 10 given by the court on its own motion was to the effect that when a person is, by the negligence of another, placed in a position of peril, and is compelled to make 3. choice between hazards and is injured, the fact that he would not have been injured had he chosen the other hazard would not of itself show negligence, correctly stated the law upon that subject.
The next contention is that the court erred in overruling appellant's motion for judgment on the jury's answers to interrogatories. The jury, in answer to one 4. interrogatory, found that if the decedent had looked to the east at the time he was crossing a sidetrack, which was about twenty-seven feet from the track on which the train which struck and killed him was approaching from the east, he could have seen the train. Appellant's contention that this answer conclusively shows the decedent was guilty of contributory negligence is not well taken. Appellant was traveling south in an automobile, and, at the time in question, he, in the exercise of reasonable care, might have been looking in the opposite direction, and, after so doing, there may have been obstructions to his view to the east which prevented his seeing the train in time to have prevented the accident. The answers of the jury do not, as a matter of law, show that the decedent was contributorily negligent.
No good purpose can be gained by a review of the evidence. It is ample to sustain the verdict.
Judgment affirmed.