Kittier v. Chicago & Western Indiana Railroad

Mr. Justice MgGoorty delivered the opinion of the court. 2. Railroads, § 738*—when evidence is sufficient to sustain finding that street car motorman is not guilty of contributory negligence. In an action to recover damages because of the death of a street car motorman who was killed after he had started his car forward across an intersecting track upon a signal from his conductor and after the railroad gates were raised, evidence held sufficient to warrant the finding of the jury that the deceased was not contributorily negligent. 3. Negligence, § 74*—when no duty exists to anticipate. Anticipation of negligence in another is not a duty which the law imposes. 4. Railroads, § 625*—what constitutes implied invitation by gateman for street car motorman to cross tracks. When a railroad gateman raises his gates it is an implied invitation from him to a waiting motorman on a street car on an intersecting track to proceed to cross the railroad tracks. 5. Workmen's Compensation Act, § 12*—when refusal of instruction as to unavailability of defenses of assumed risk, etc. is not reversible error. In an action against three defendants to recover damages for alleged wrongful killing, held not reversible error to refuse an instruction requested by one defendant that the defenses of assumed risk, fellow-servant and contributory negligence were not available to a codefendant, the employer, found not guilty, because it had elected not to come under the Workmen’s Compensation Act, where there was nothing in the record intimating that such defenses were not available as to such codefendant who alone was found guilty. 6. Judgment, § 217*—when refusal of motion in arrest of judgment is not error. The mere fact that the declaration in an action to recover damages because of death contains in each count two separate causes of action, one against one defendant under the Workmen’s Compensation Act and one against another defendant under the Death by Wrongful Act Statute, does not make the refusal of motion in arrest of a judgment against the latter defendant alone erroneous.