75 N.E.2d 194 | Ind. Ct. App. | 1947
This is an action by appellee against appellant to recover damages alleged to have been caused by the negligent acts of appellant in backing a cut of railway cars across Brady Street in the city of Muncie, Indiana. The accident occurred at about 9:30 p.m. on November 8, 1940.
A directed verdict for appellant upon a former trial was reversed by the Supreme Court (
The sole error assigned is the overruling of the motion for a new trial, which assigned as reasons therefor: 1. That the verdict is not sustained by sufficient evidence; 2. That the verdict is contrary to law; 3. That the damages are excessive; 4. That the court erred in giving plaintiff's instructions Nos. 1, 2, 4, 5, 6, and 7; 5. That the court erred in giving instruction No. 14 upon the court's own motion; and 6. That the court erred in refusing to give instruction No. 26 requested by appellant.
We have examined the record in the former appeal and find that appellee's evidence, and the evidence most favorable to the appellee in the instant case is *529 the same or substantially the same as on the first trial and that any additional evidence is merely cumulative.
In the former appeal the Supreme Court said: "Considering the evidence most favorable to the appellant and the inferences that may be drawn therefrom, we are forced to conclude that 1. there was some evidence of negligence and of physical injury; that there was some evidence of shock and fright contemporaneous with and growing out of the physical injury as the natural and direct result thereof. Under such circumstances, the case should have been submitted to the jury for its determination." Boston v. Chesapeake O. Ry. Co. (1945),
We are unable to find anything in the instant record that would justify us in reaching a conclusion different from that reached by the Supreme Court upon the former appeal and therefore we hold that the decision of the Supreme Court as to the sufficiency of the evidence to sustain the verdict is the law of the case upon this appeal. Automobile Underwriters, Inc. v. Rich (1946),
There is ample evidence to sustain the damages assessed by the jury. Aside from the physical injuries and mental shock and fright contemporaneous with and growing out of the physical 2. injury as the natural and direct result thereof, there is evidence in the record to the effect that appellee actually lost $3,825 in wages because of hours he was unable to work due to his physical condition after the accident, besides a cash outlay for hospital and doctor bills and other expenses in excess of $464. *530
We have examined instructions Nos. 1, 2, 4, 6 and 7, given to the jury at appellee's request, and hold that they are not subject to the objections urged by the appellant, and therefore the court did not err in giving each of said instructions. There is no merit in appellant's objection to instruction No. 14, given upon the court's own motion.
3. Instruction No. 5, given at appellee's request, reads as follows:
"You are instructed that if a railroad crossing is especially dangerous to travelers on account of its locality or because the track is partially obscured, or by reason of such other facts and circumstances as are shown by all the evidence, the railroad company must exercise such care and take such precaution as the nature of the crossing requires, and failing in this it is guilty of negligence."
Appellant objected to this instruction for the reason that "it is entirely without the issues, there being no allegation in the complaint that the railroad crossing in question was especially dangerous to travelers on account of its locality, or because the track was partially obscured, or by reason of any other facts and circumstances." We think that appellant's objection to said instruction is well founded. There are no facts alleged in the amended complaint tending to show that the Brady Street crossing was especially dangerous to travelers on account of its locality, or that the track was partially obscured, or that a traveler's view to the east of said crossing was obscured, or any other specific facts or circumstances tending to show that the defendant was required to give more than the statutory crossing signals or do any other act to warn travelers approaching said crossing. *531
It is well settled that instructions to the jury should be pertinent to the issues and applicable to the evidence in the case. It is also fundamental that a plaintiff can recover 4-6. only upon the complaint he makes; that is, he cannot complain of one thing and recover for another. IndianaR. Co. v. Maurer (1903),
The error in giving an erroneous or contradictory instruction is presumed to be prejudicial, Chandler v. Kraner (1947),
Appellee relies upon the case of Domestic Block Coal Co. v.DeArmey (1913),
Therefore, we hold that the giving of said instruction No. 5, at appellee's request, constituted reversible error.
Appellant also assigns error in the court's refusal to give instruction No. 26, requested by appellant. In view of our conclusion that the judgment must be reversed, we do not deem it necessary to discuss this assignment for the reason that the same alleged error may not arise upon a retrial.
For error in giving instruction No. 5, requested by appellee, the judgment is reversed with directions to sustain appellant's motion for a new trial.
NOTE. — Reported in