This is an action brought by Lucinda Welsh, administratrix of the estate of Claude D. Welsh, deceased, against the appellant for the wrongful death of said Claude D. Welsh by reason of a collision between an automobile and the appellant's train at Walton, Indiana, on April 26, 1926, at a place where a highway on which appellee was riding crossed the appellant's railroad. *Page 406
The case was tried on the appellee's amended complaint and an answer in general denial thereto.
There was a trial by jury, with a verdict against the appellant in the sum of $8,000, upon which verdict a judgment was rendered.
The error assigned is the overruling of the appellant's motion for a new trial, which was on the grounds that the verdict of the jury is not sustained by sufficient evidence; the verdict of the jury is contrary to law; the damages assessed by the jury are excessive; the court erred in giving to the jury certain instructions tendered and requested by the plaintiff; and the court erred in refusing to give and in not giving to the jury the instruction tendered and requested by the appellant, instruction No. 2.
The amended complaint, upon which this case was tried, alleges negligence on the part of the appellant in placing a coal car out into the highway near the crossing so as to obstruct the view of appellee; also that the appellant was negligently operating its train at a high and dangerous rate of speed without regard to the dangerous condition of the crossing and without giving the signals required by law.
The appellant admits that there is sufficient evidence to support the judgment on appeal, but earnestly contends that certain instructions which we shall consider were misleading and that the jury was thereby misled.
Instructions Nos. 5, 6 and 7 instructed the jury concerning the appellant's duty in regard to allowing its cars in the highway where they might obstruct the view of travelers on the 1. highway. The appellant contends that the width of the highway was not proved, and, therefore, all instructions on the subject were improper. No evidence was given as to how the highway was established, whether by dedication, user, or by a statutory proceeding, but there was *Page 407 evidence to the effect that a certain coal shed was located on the south side of the road and that the car extended out north of the coal shed in the space used by the public.
Other instructions are said to be erroneous because the court used the words "negligence alleged," where the appellant says he should have used the words "alleged and proven." An 2. examination of these instructions shows that the court, in addition to the words complained of by appellant, in every instance used the phrase, "If you find from a fair preponderance of the evidence, etc.," so that the jury was, in effect, instructed that negligence must be not only alleged but alsoproven.
The court gave all the instructions requested by the appellant covering every question embraced in the pleadings except instruction No. 2, requested by the appellant, by the terms 3. of which, the jury would have been instructed that there was no evidence sufficient to sustain a charge of negligence by allowing a coal car to remain on its track as stated above. This instruction was refused. The records of the appellant company showed that the car had been moved from the place before the accident. Two witnesses testified that they saw the car there before and after the accident on the day of the accident. Therefore, no error was committed in refusing to give the requested instruction.
We find no reversible error in the record.
Judgment affirmed.