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Anthony v. New York Cent. R.

AUGUST 9, 1965.

SYLVIA ANTHONY, ADMINISTRATOR OF THE ESTATE OF ROBERT DAVID ANTHONY, DECEASED, PLAINTIFF-APPELLEE,

v.

THE NEW YORK CENTRAL RAILROAD, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Edgar County; the Hon. ROBERT F. COTTON, Judge, presiding. Affirmed.

CRAVEN, J.

Rehearing denied September 2, 1965.

Suit for wrongful death was brought by the administrator of the estate of Robert David Anthony, deceased. A judgment was entered upon a jury verdict in the amount of $14,170 returned in the Circuit Court of Edgar County against the defendant, The New York Central Railroad.

The defendant appeals alleging the following errors:

1. The court erred in failing to direct a verdict because:

(a) There was no evidence of due care on the part of the plaintiff.

(b) There was no evidence of negligence on behalf of the defendant.

2. The court erred in limiting inquiry to the deceased's personal habits and past history.

3. The court erred in instructing the jury.

4. The verdict was excessive.

The facts show that the decedent, Robert David Anthony, at the age of nineteen years and eleven months, together with his wife and Mrs. Linda Downing, were killed in a collision with a New York Central train at the High Street intersection in Paris, Illinois, on December 22, 1962, at 2:00 p.m.

Earlier in the day, Linda Downing, driving the Plymouth automobile, picked up the decedent and his wife at Mrs. Anthony's parents' home in Clinton, Indiana, to take them to the decedent's parents in Paris so the decedent could do some TV repair work there. The car was next seen stopped on High Street in Paris with the right-front car door open and with a man looking under the front of the car. Plaintiff's witness, Kathleen Fulton, stated on cross-examination that the person she saw could have been a woman dressed as a man with a short haircut. Plaintiff's Exhibit 4 shows one of the girls was wearing calf-length slacks and the other blue jeans rolled to calf length.

Mrs. Fulton testified the car started and proceeded slowly north toward the tracks where, south of the crossing, it met and passed a car driven by Jack Pine. Jack Pine testified he was traveling south on High Street and was not aware of the presence of a train until he was on the tracks. He stated he pushed the accelerator to the floor, cleared the crossing and passed the Plymouth just as it was entering the crossing. He testified he heard no whistle, that his hearing was good, and that there was no noise from the car other than the motor. The other occupant of the Pine auto, Jon Tilton Piper, testified to essentially the same facts. Mrs. Fulton testified she heard no whistle, although she did hear the collision. Mr. and Mrs. Bruce Zeigler were driving parallel to the train, a block away, and testified they heard no whistle.

The defendant introduced countervailing evidence that the whistle was sounding and the bell ringing. The speed of the train is in dispute, as is the extent of obstructions and degree of visibility. The weather was cool and ...


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