9. RAILROADS 350(13)-INJURIES AT CROSS-a distance of more than 250 feet. On the ING NEGLIGENCE-QUESTION OF LAW. In an action against a railroad for a death at a crossing, negligence in decedent can be determined by the court as a matter of law only where but one inference can be drawn from the facts, the standard of duty being fixed and certain, or the negligence being so clear and palpa ble that no verdict could make it otherwise. Appeal from Circuit Court, Martin County; James W. Ogden, Judge. Action by Daniel A. Baker, administrator, against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for defendant, plaintiff appeals. Judgment reversed, with instructions to grant new trial. Frank E. Gilkison, of Shoals, for appellant. F. Gwin, of Shoals, and Gardiner, Tharp & Gardiner, of Washington, Ind., for appellee. occasion in question there was a train on the HOTTEL, J. This is an appeal from aing said track, approached said crossing from judgment against appellant in an action brought by him against appellee to recover damages on account of the death of Phoeba Baker, alleged to have been caused by appellant negligently striking her with one of its trains at Shoals, Ind. Said Daniel A. Baker, the administrator, was the husband and only heir of the deceased, Phœba Baker. A trial by jury resulted in a verdict for appellant in the sum of $1,000. With its general verdict the jury returned answers to interrogatories. Appellee's motion for judgment thereon was sustained. The ruling on this motion is assigned as error and relied on for reversal. [1] In determining the correctness of such ruling this court will not look to the evidence actually given in the case, but will search the pleadings to see if any evidence, possible under the issues, such answers can be reconciled with the general verdict, and every possible reasonable inference and presumption deducible from evidence which might have been admitted in support of such verdict will be indulged in its favor. Lutz v. Cleveland, etc., R. Co., 59 Ind. App. 16, 23, 108 N. E. 886; Meyers v. Winona, etc., R. Co., 58 Ind. App. 516, 106 N. E. 377. the south in a careful and cautious manner about 3 o'clock p. m. At the same time appellee's said train was approaching said crossing from the west. Because of said curve in appellee's track, said high hill on the north side thereof, and said freight train on the side track, decedent was unable to see such approaching train, and because of appellee's neglect and failure to ring the bell and sound the whistle on its locomotive decedent was unable to hear, and did not hear, such train, and decedent had no notice of such approaching train until she was on the track and it struck her, and while in the act of crossing such track decedent was, by appellee's negligence, struck by said train, and from such injuries three days later. Deceso seriously injured thereby that she died dent would not have been injured but for appellee's negligence. Had the whistle been sounded or the bell rung, decedent would have heard the same, and would have been warned of the approaching train and not gone on the track, and had the train been running within the speed limit provided by said ordinance, decedent could have escaped from the track and avoided her injury and death. The interrogatories and answers thereto are as follows: "(1) As the plaintiff's decedent, Phœba Baker, approached the railroad tracks of the defendant killed, how far could she have seen a train apat the time and place where she was struck and proaching from the west when she was 50 feet from such place, had she looked to the west? Answer: 100 yards. The averments of the complaint which have a controlling influence on the questions presented by the answers to interrogatories are, in substance, as follows: On October 25, 1913, appellee's railroad, main track and side track, crossed one of the frequently traveled public streets of the west part of the town of Shoals, Ind., and appellee was then operating one of its trains on its main line over and across such street. Immediately west of the "(2) How far could she have seen such apcrossing the railroad track curves sharply to proaching train when she was 25 feet from such the north, and on the north side of said rail-track, had she looked in the direction from which Answer: 75 yards. road, and for a long distance west thereof, the train was coming? was, and is, a high hill, which obstructs the view of such road west of said crossing for * * * "(3) How far could she have seen such approaching train when she was 10 feet from such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes track, had she looked in the direction from which | any finding that decedent was, at such parthe train was coming? Answer: 100 feet. ticular time, looking west, or in the direction "(4) How far could she have seen the train which struck her, when she was at the south rail of the main track had she looked to the west? Answer: 150 feet. * * "(5) At the time plaintiff's decedent was at the end of the ties on the south side of the main track, could she not have seen the train which struck her had she looked to the west when it was as much as 250 feet away from the place where she was struck? Answer: Yes. * * "(6) If you shall answer the fifth interrogatory in the negative, then state how far she could have seen such train had she looked? Answer: 250 ft." of such approaching train, or that she saw such train at either of such points, and there is no finding that she did not look both ways and listen for approaching trains. [4, 5] In view of the issues, the law, applicable to the question under consideration, requires us to assume, in favor of the general verdict, that decedent looked for an approaching train and, in view of such assumption, it cannot be said, as a matter of law, that decedent was guilty of negligence because she did not look in the right di and where looking would have been of the most advantage." Cleveland, etc., R. Co. v. Lynn, 171 Ind. 589, 85 N. E. 999. 1001) the following language from St. Louis, etc., R. Co. v. Dillard (1906) 78 Ark. 520, 94 S. E. 617: [2, 3] It is asserted by appellant that in-rection "at the precise place and time when terrogatories 4, 5, and 6 are deceptive and misleading, and for this reason were improper and should not have been given. In support of this contention, appellant insists, [6] It was decedent's duty under the law in effect, that each of the last three inter- to look in both directions, and we may asrogatories contains a concealed assumption sume, in favor of the general verdict, that, that the train which struck and injured de- at least during a part of the time in which cedent was within the range of vision ex- she was traveling from the point 50 feet pected to be elicited by the answer of the south of the track to such track, she was jury to the particular interrogatory at the looking toward the east to discover if any particular time decedent was at the point train was approaching from that direction, indicated in such interrogatory as the point and it cannot be said as a matter of law that concerning which the inquiry therein was she was negligent for looking in such direcmade. Such interrogatories are, we think, tion rather than in the direction from which subject to the infirmity suggested by appel- the belated train which struck her was aplant, but the infirmity is one which the trial proaching. Upon this question the Supreme court did, and this court can, obviate or Court, in the case last cited quotes with apcure by ignoring the partially concealed as-proval (171 Ind. pages 594, 595, 85 N. E. page sumption contained in such interrogatories, and giving to the answers thereto a construction as favorable to the general verdict as any fair interpretation to which such interrogatories are susceptible will permit. When we give to said interrogatories such interpretation, the jury, by its answers thereto, found that if decedent, when approaching the appellee's track, had looked to the west when 50 feet distant, she could have seen the train 100 yards away, if such train, at that particular time, had in fact been within that distance; that when 25 feet from the track she, by then looking west, could have seen such train 75 yards distant, if it in fact, at that particular time, had been within that distance; that when 10 feet from the track she, by then looking west, could have seen the train 100 feet distant, if at such time such train had, in fact, been within that distance; that when on the south rail of the main track, if she had then looked west, she could have seen such approaching train 150 feet distant, if in fact such train had, at such time, been within that distance; that when at the end of the ties on the south side of the main track, she, by then looking west, could have seen such train 250 feet distant, if such train at such time had in fact been within such distance. There is no finding that the train which struck appellant's decedent was, at either of the times to which the respective inquiries were directed, within the distance indicated by the answer to each particular interrogatory, nor is there "Now in this case we are asked to say, as a matter of law that, though the plaintiff brought his team almost to a standstill in 25 or 30 feet of the track, and carefully looked and listened both ways up and down the track, and no train was in sight for a distance of 200 yards to the west, and he started across, meanwhile listening for trains and looking toward the east where of negligence in failing to look again toward the he specially apprehended danger, he was guilty west while going that distance toward the track. So to hold would be, we think, to make the traveler the insurer of his own safety and deprive him entirely of the right of recovery for injury caused by the negligence of the railroad company, unless he kept his eyes turned every moment, under all circumstances, toward the direction from which the train came." Since the passage of the act of 1899 (Acts 1899, p. 58, being section 362, Burns 1914) the burden of proving contributory negligence is on the defendant, and while appellee was entitled to make such proof under its general denial, the plaintiff was also entitled to introduce any evidence that might tend to relieve her from the charge of such negligence, and hence may have introduced evidence which showed that, at the particular times and places indicated in said interrogatories, her attention was temporarily attracted elsewhere, thereby making such question one of fact for the jury, and the rule as to looking "is not inflexible and unvarying as to time and place, so as always, and under all circumstances, to require the case to be taken from the jury | utory negligence on account of a lack of merely because the traveler might have seen the prompt or intelligent action on her part retrain if he had looked in the right direction at sulting from such confused mental condition. a particular instant from a particular place." Cleveland, etc., R. Co. v. Lynn, supra, 171 Ind. Upon this subject the Supreme Court in the 593, 594, 85 N. E. page 1000. case of Cleveland, etc., R. Co. v. Lynn, supra, said: [7] For the purposes of the question under consideration, we must assume that appellee's train approached the crossing where decedent was struck at a speed of 60 miles an hour, in violation of an ordinance limiting such speed to 6 miles an hour, and in violation of the state law requiring it to sound the whistle and ring the bell, etc. The decided "cases in this state recognize the doctrine that it is the right of the traveler, within reasonable limits, to assume that the railway company will obey the law; and, while this does not relieve him from the exercise of due care, yet it may be a feature in determining whether due care was exercised." Cleveland, etc., R. Co. v. Lynn, supra, 171 Ind. 594, 85 N. E. 1001, and cases cited; Cleveland, etc., R. Co. v. Rumsey, 52 Ind. App. 371, 376, 100 N. E. 782; Cleveland, etc. R. Co. v. Harrington, 131 Ind. 426, 431, 30 N. E. 37. In the case just quoted from the Supreme Court further said on this subject: "In the absence of some evidence to the contrary we think appellee had the right to presume that the appellant would obey the city ordinance, and would not run its trains at a greater rate of speed than 4 miles an hour at the point where the injury occurred; and, while the wrongful conduct of the appellant in this regard would not excuse her from the exercise of reasonable care, yet in determining whether she did use such care, her conduct is to be judged in the light of such presumption. If when she looked to the north 400 feet and saw no train, she knew that she could cross the tracks in safety before a train running at the speed fixed by the city ordinance could reach her from that direction, it would be a harsh rule which would adjudge her guilty of negligence because she was struck by a train moving nearly five times as fast as the speed fixed by the ordinances of the city, which she had a right to presume the appellant would obey.' [8] There is another fact of importance and controlling influence that should never be overlooked in a case of this character. It is a matter of common knowledge that when a person is suddenly and unexpectedly confronted with certain and imminent peril, like that with which appellant's decedent was confronted, at the time in question, the avoidance of which necessitated immediate action, on her part, there may, and ordinarily does, result a mental confusion and hesitation that prevents that prompt and intelligent action that the emergency may demand in order that the peril may be avoided; and where, as in this case, the averments of the complaint show that the railroad company's negligence may have been responsible for such perilous situation and said condition of mind resulting therefrom, this court, in the absence of a finding of the jury to the contrary, must presume, in favor of the general verdict, that such condition of mind did exist, and that appellee's negligence was responsible therefor, and hence that the party injured should not be charged with contrib "The circumstances in which persons are plac the question of fact whether the required degree ed must necessarily be considered in determining of care has been exercised, and it is obvious that persons placed in a position of peril, where a course of conduct must be determined without any time in which to deliberate, cannot be judged by the same rule applicable where there is ample time to determine what course to take_to avoid danger." Roberts v. Chicago, etc., R. Co., 262 Ill. 228, 104 N. E. 708, 710; Pittsburgh, etc., R. Co. v. Carlson, 24 Ind. App. 559, 564, 56 N. E. 251. [9] Assuming that the train which struck decedent approached at the rate of 60 miles an hour, it would have covered the greatest distance indicated by the answers to interrogatories, 100 yards, in a little less than 32 seconds, so that if decedent had looked west 32 seconds before her injury and when at a point 50 feet from the track, we may assume that she would have seen no approaching train. If her attention had then immediately been directed toward the east for only two or three seconds while she continued her approach toward the track she would, in all probability, have been on the track within such time, and the approaching train could have then been so close that escape was impossible, or at least so near that no appreciable time would have remained to her in which to determine and take intelligent action in view of her present and imminent peril. "It is only when the standard of duty is fixed and certain, or where the measure of duty is defined by law, or when the negligence is so clear and palpable that no verdict could make it otherwise, that the question of negligence becomes one of law and not of fact." New York, etc., R. Co. V. Hamlin, 170 Ind. 20, 39, 83 N. E. 343, 349 [15 Ann. Cas. 988]; Town of Albion v. Hetrick. 90 Ind. 545, 547, 46 Am. Rep. 230; Town of Newcastle v. Grubbs, 171 Ind. 432, 496, 86 N. E. 757. Negligence can be determined by the court as a matter of law only in those cases where but one inference can be drawn from the facts proven. Cleveland, etc., R. Co. v. Rumsey, supra, 52 Ind. App. 376, 100 N. E. 782. In view of the evidence possible under the issues in this case we cannot say that the answers to interrogatories leave the question of decedent's negligence open to but one inference. On the contrary, such answers leave the question of contributory negligence open to different inferences, and hence cannot override the general verdict returned by the jury. We think the ends of justice would be subserved by directing a new trial rather than by directing judgment on the verdict. The judgment below is therefore reversed, with instructions to the trial court to grant a new trial, and for such further proceedings as may be consistent with this opinion. (61 Ind. App. 403) SIMMONS v. MEYERS et al. (No. 8920.) (Appellate Court of Indiana, Division No. 2. March 31, 1916.) 1. BILLS AND NOTES 445-ACTION BEFORE MATURITY. tireties, whether or not the wife joined in the mortgage. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 85; Dec. Dig. 14(11).] 9. VENDOR AND PURCHASER 266(8)—VENDOR'S LIEN-TAKING OF MORTGAGE. The taking of a mortgage by the vendor of Action commenced March 28, 1912, on asistent with the existence of a vendor's lien. land to secure the purchase price is not inconnote maturing December 26, 1912, was prematire. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1311-1329; Dec. Dig. 445.] 2. APPEAL AND ERROR 1010(1)-REVIEW SUFFICIENCY OF EVIDENCE. Where there is evidence to sustain the trial court's decision in its material aspects, the judg ment must be affirmed. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 735-747; Dec. Dig. ~~266(8).] DOR'S LIEN-NONTECHNICAL CHARACTER. [Ed. Note.-For other cases, see Mortgages, dee is not necessary to the creation or existence Cent. Dig. § 108; Dec. Dig. 38(1).] of a lien in favor of one party against another's 5. MORTGAGES CY OF EVIDENCE. 74-DELIVERY-SUFFICIEN-lands. In an action on a note and to foreclose a mortgage, evidence held sufficient to support finding that the instruments were not delivered to the mortgagee. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 172; Dec. Dig. 74.] [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 624-635; Dec. Dig. 251.] 13. HUSBAND AND WIFE 14(2)—TENANCY BY ENTIRETIES. A tenant by the entireties owns the entire estate, and, if owned in fee, such an estate is 6. MORTGAGES 71-DELIVERY-VALIDITY. not greater in quantity than any other estate Where a mortgage and note were surrender-in fee. ed to the mortgagee on condition that they should take effect if the property which the mortgagor was buying was satisfactory when inspected, there was no valid delivery, to which an intention that the instrument take effect is essential. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 168; Dec. Dig. ~71.] 7. DOWER 26-JOIN DER IN MORTGAGESTATUTE. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 73, 74; Dec. Dig. 14(2).] 14. VENDOR AND PURCHASER 250-VENDOR'S LIEN-ENFORCEMENT AGAINST TENANTS BY ENTIRETIES. Where lands were purchased and conveyed to husband and wife as tenants by the entireties, and the husband executed his note for the price, which remains unpaid, or the wife paid part of the consideration, and the husband executed his unpaid, and in the latter case the wife at the time of conveyance had, or was chargeable with, knowledge of the facts, the vendor may enforce his lien against the lands. Under Burns' Ann. St. 1914, § 3033, touch-note for the balance, which balance remains ing the widow's rights to land mortgaged by her husband to secure the purchase money, where a husband purchases real estate, taking title in his own name, and executes a mortgage thereon to secure the payment of the purchase money, the mortgage is a valid lien upon the entire title, whether or not the wife joins in the mortgage. [Ed. Note.-For other cases, see Dower, Cent. Dig. $$ 67, 68 71; Dec. Dig. 26.] 8. HUSBAND AND WIFE ESTATE-MORTGAGE-JOINDER. 14(11)-ENTIRETY [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 618-623; Dec. Dig. 250.] 15. MORTGAGES 243-ASSIGNMENT-EFFECT ON LIEN. The lien of a mortgage passes with its assignment. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 629-632; Dec. Dig. 243.] 16. VENDOR AND PURCHASER 261(2)-AsSIGNMENT OF NOTE-EFFECT ON VENDOR'S LIEN. Where a husband executed his note to a third party in consideration of such party's payment of the husband's debt, the note, and the mortgage executed to secure its payment, gave the payee no right to establish a lien against the The assignment of a note, given for the purland, held by the husband and his wife by en-chase price of land, passed the vendor's lien For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 17. MORTGAGES PEL TO CONTEST VENDOR'S AND MORTGAGE to the assignee; the lien being a mere incident | enforced against such real estate a vendor's of the debt. lien in the amount of the note. The demur[Ed. Note. For other cases, see Vendor and rer of each appellee to each paragraph of Purchaser, Cent. Dig. §§ 679-686; Dec. Dig. the complaint was sustained. In such rul261(2).] 260-ASSIGNMENT-ESTOP-ing there was no error, as each paragraph disclosed affirmatively that the action was prematurely commenced. The note by its terms matured December 26, 1912, while the action was commenced March 28, 1912. Indianapolis, etc., Co. v. First National Bank, 134 Ind. 127, 33 N. E. 679; Walter A. Wood Co. v. Caldwell, 54 Ind. 270, 23 Am. Rep. 641; Middaugh v. Wilson, 30 Ind. App. 112, 65 N. E. 555; Norris v. Scott, 6 Ind. App. 18, 32 N. E. 103, 865; American, etc., Co. v. Gibson County, 145 Fed. 871, 76 C. C. A. 155, 7 Ann. Cas. 522; 1 R. S. L. 641; 1 C. J. 1152; 31 Cyc. 291. A husband and wife, who agreed to buy lands, the husband executing a note and mortgage for the price, delivering the instruments on condition that they should not take effect unless the property was satisfactory, doing so while the wife was away from home to inspect it, were not estopped from contesting the existence of a vendor's or mortgage lien upon the lands, which proved to have been misrepresented, against the assignee of the mortgage and note. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 692; Dec. Dig. 260.] 18. MORTGAGES OF INFIRMITY. 258-ASSIGNMENT NOTICE Where the assignee of a note and mortgage given by a husband to secure the price of lands purchased by himself and wife conditionally upon their proving as represented had his attention called to the fact that the wife had not signed the mortgage, though both husband and wife were named in the body of the instrument as mortgagees, and was also informed that the land was held by entireties, which fact was also disclosed by the deed records in the recorder's office, and also knew that the wife had refused to sign the mortgage on account of the misrepresentations, such assignee was charged with the duty of inquiry. Appellee Clint Parker and Hattie F. Parker, his wife, filed a cross-complaint, whereby they sought to quiet their title to a certain lot numbered 15 in Beech Grove, Marion county, Ind., being the real estate described in the mortgage, against all claims of appellant and coappellees thereto. Appellees Meyers and Meyers disclaimed. Appellant answered in general denial, and filed also certain paragraphs which he designated crosscomplaints, whereby he brought to the attention of the court the same facts as pleaded in his complaint, and prayed as affirmative relief that the lien of said mortgage, and in the alternative that a vendor's lien in the amount of the note, be declared and established against said real estate. issues being closed by general denials, the cause was tried by the court without a jury, resulting in a judgment and decree quieting title in appellee Clint Parker against all Appeal from Circuit Court, Marion Coun- claims of appellant and appellees Meyers and ty; Charles Remster, Judge. Meyers and Kuntz and Kuntz. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 689-691; Dec. Dig. 258.] 19. VENDOR AND PURCHASER TICE OF VENDOR'S TITLE. 231(3)—No The purchaser of land had constructive notice that his vendors, husband and wife, held by entireties; the deed to them being in his chain of title. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 515; Dec. Dig. 231(3).] Suit by John B. Simmons against Benjamin F. Meyers and others. From a judgment for defendants, plaintiff appeals. Affirmed. Arthur R. Robinson, Frank A. Symmes, and Robert I. Marsh, all of Indianapolis, for appellant. Emsley W. Johnson and Joseph W. Hutchinson, both of Indianapolis, for appel lees. CALDWELL, J. [1] Appellant filed his complaint in two paragraphs. In each he declared on a promissory note alleged to have been executed by appellee Benjamin F. Meyers, and indorsed by appellees Kuntz and Kuntz. In each paragraph he prayed a personal judgment against appellees Benjamin F. Meyers and Julia A. Meyers, his wife, and Martin J. Kuntz and Elizabeth M. Kuntz, his wife. By the first paragraph he sought also to foreclose against certain real estate owned by appellee Clint Parker a mortgage alleged to have been executed by Benjamin F. Meyers to secure the note. By the second paragraph, in addition to personal judgment as aforesaid, he sought to have declared and The [2] If there is evidence to sustain the decision in its material aspects, under the rule that governs on appeal, this cause must be affirmed. The evidence in some respects is contradictory. As tending to support the decision it is, in substance, as follows: December 26, 1910, Kuntz and Kuntz were the own ers of the real estate described in the crosscomplaint, and also of two other tracts situate in Beech Grove, one tract in Hartsville, and claimed to own a residence property in Marion, Ind. At the same time, Meyers owned an 80-acre farm in Michigan, and held also of Patterson M. Hearn a contract to purchase a 90-acre farm situate in Bartholomew county; deed to be made on the payment of $475, the balance of the purchase price. Appellee Julia A. Meyers owned an 80-acre farm in Bartholomew county. Each of these parcels of real estate was incumbered. On said day Kuntz and Kuntz executed their deeds, by which they conveyed to Meyers and Meyers by entireties the above five tracts of land owned by the former, in consideration of which the latter conveyed to the for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |