Opinion
No. 27,034.
Filed May 11, 1938. Rehearing denied December 19, 1938.
1. RAILROADS — Crossing Accidents — Actions for Injuries — Complaint — Negligence — Maintenance of Highway at Crossing. — In complaint for injuries resulting from motorist's running into a freight train passing over a highway crossing, neither a charge that defendant railroad failed to maintain the highway to the full width of the highway right of way, nor that it failed to provide some signal other than statutory signals to warn travelers that a train occupied the crossing, constituted actionable negligence. p. 696.
2. APPEAL — Review — Harmless Error — Instructions — Appellant Not Entitled to Judgment in Any Event. — In action against a railroad company for personal injuries in a crossing accident, where the complaint failed to charge any act constituting actionable negligence, and the undisputed evidence would not entitle plaintiff to recover in any event, any error in instructions was harmless. p. 696.
From Gibson Circuit Court; A. Dale Eby, Judge.
Action by Russell W. Dyer, as administrator de bonis non of the estate of Maurice Warner, deceased, against The New York Central Railroad Company for damages for the death of plaintiff's decedent in a railroad crossing accident. From a judgment for defendant, plaintiff appealed. Transferred from the Appellate Court under § 4-218 Burns 1933. Affirmed.
McDonald McDonald, Lockyear Lockyear, and David A. Myers, for appellant.
Carl M. Gray, for appellee.
The facts in this case are the same as in the case of New York Central Railroad Co. v. Dyer, Adm'r, post 708, decided at this term. There was judgment below for the appellee, and, upon authority of New York Central Railroad Co. v. Casey (1938), ante 464, and New York Central Railroad Co. v. Dyer, Adm'r., supra, the judgment is affirmed.
ON PETITION FOR REHEARING.
By his petition for rehearing, the appellant asserts that the only questions presented by the appellant in the appeal involve the action of the trial court in giving or refusing certain instructions; that the record does not purport to contain all the evidence; that the only question decided by the court in the cases, upon the authority of which this case is decided, involved the sufficiency of the evidence.
The complaint declares upon negligence on the part of the appellee in failing to maintain the highway for the full width of the public highway right of way, and upon negligence in 1, 2. failing to provide signals of some sort, other than statutory signals, to warn travelers that there is a train upon the track. Neither constitutes actionable negligence. The appellant's brief contains a condensed recital of the evidence, covering over fifty pages, which obviously includes substantially all of the evidence in the case, from which it appears conclusively that the appellee was guilty of no negligence. In view of the undisputed facts, there can be no amendment of pleadings or change of evidence that would permit the appellant to recover. No good purpose would be served by discussing the many instructions questioned. If there was error, it was harmless, since the only instruction justified under the circumstances was a peremptory instruction for the appellee.
The petition for rehearing is denied.