59 Ind. App. 161 | Ind. Ct. App. | 1915
Lead Opinion
This is an appeal from a judgment in favor of appellee for damages for personal injuries. 'With its general verdict the jury returned answers to interrogatories. Errors assigned and relied on for reversal are: (1) The
Omitting averments about which there is no controversy, the complaint, in substance, charges that appellant is, and was on June 4, 1910, a street railway corporation, and owned and operated a road over and upon Michigan Street in the city of South Bend,. Indiana, which extended across Jefferson Boulevard in the business section of the city; that on said day appellee was riding eastwardly along Jefferson Boulevard on a bicycle and at the intersection of said streets, when crossing Michigan Street, was struck by a hand car of appellant operated over and upon said street by appellant’s servants'; that appellant “at said time and place negligently and carelessly ran and operated said hand car” and “further negligently and carelessly failed to equip said hand ear with an efficient brake by which said ear could be quickly stopped”, and further “negligently and carelessly failed to give any signal or warning of its approach to said crossing” and further “negligently failed to equip its said hand car with any device or means by which a signal or warning of its approach to said crossing could be given. * * # That by reason of each of said acts of negligence * * * said hand car was * * * run by the defendant upon and against the plaintiff and he was thereby thrown to the ground and dragged. * * * and permanently1 injured, and he was rendered incapable of following his usual occupation and has lost valuable time and expended money for medical services all to his injury and damages in the sum of $10,000.”
“take into consideration expenses, if any, actually incurred as a result of his injuries”. That there is evidence tending to prove that he incurred medical expenses, but no evidence to show the values of the services rendered. Tkp cases dealing with this question bear strong evidence of a want of uniformity in the decisions. "Whether a careful analysis of the issues and evidence in each case and the varying phraseology of the several instructions considered would result in clearing up the apparent inconsistency in the holdings, we need not, and do not decide, for in our view of the case under consideration, the differences, if any, in the decided cases, are not material to the question here presented. Thomas Madden, Son & Co. v. Wilcox (1910), 174 Ind. 657, 668, 669, 91 N. E. 933, and cases cited; Ohio, etc., R. Co. v. Stein (1894), 140 Ind. 61, 69, 39 N. E. 246; Lytton v. Baird .(1884), 95 Ind. 349, 357; Indianapolis, etc., Traction Co. v. Henderson (1906), 39 Ind. App. 324, 330, 79 N. E. 539; Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369, 377, 91 N. E. 238, and cases cited; Cincinnati, etc., R. Co. v. Armuth (1913), 180 Ind. 673, 103 N. E. 738, and cases cited.
An examination of the cases where similar instructions relating to damages were held erroneous and harmful shows that in some instances the decisions are based on the proposition that the jury was permitted or directed to go outside the issues and-beyond the evidence, while in others the vice-is found in permitting the jury to consider .loss of time or medical expenses and the like, where there was evidence to show loss of time or expenses but no evidence to show the amount of the expenses or the value of the time lost. Some
Giving the rule contended for by appellant its full effect we do not think the instruction was erroneous or harmful as applied to the facts of the case, for there was proof of payment for care and treatment during the only time the evidence shows he was under treatment for the injuries received. The jury was not left to speculate or guess at the amount and there is no room to indulge the presumption that in making up its verdict it allowed anything for treatment other than the amount definitely proven. Furthermore, at the request of appellant, the jury was further instructed on the measure of damages, and in instruction No. 17 was told, “If you find for the plaintiff, then you will determine from the evidence, the amount the plaintiff is entitled to recover.” In other instructions the jury was frequently told that its finding must be based on the evidence. It is clear that there is no room for the contention that the jurors were led to believe that they could go outside the evidence in assessing appellee’s damages.
. We have gone through the briefs and considered the numerous questions suggested but we do not feel justified in giving further detailed consideration to them. We find no reversible error. Judgment affirmed.
Rehearing
On Petition for Rehearing.
Petition for rehearing overruled.
Note. — Reported in 107 N. E. 689; 108 N. E. 971. As to what is an excessive verdict in an action for personal injuries not resulting' in death, see 16 Ann. Cas. 8; Ann. Cas. 1913 A 1361. As to the duty of a pedestrian to stop, look, and listen before crossing street railway tracks, see 3 Ann. Cas. 334. As to the difference in the degree of care required of a person crossing electric or street railway tracks in a city and in country districts, see 10 Ann. Cas. 336. See, also, under (1) 31 Cyc. 85; (2) 36 Cyc. 1571; 31 Cyc. 85; (3) 36 Cyc. 1646; (4) 36 Cyc. 1533; (5) 36 Cyc. 1638; 38 Cyc. 1782, 1814; (6) 13 Cyc. 130; (7) 3 C. J. 1409 ; 2 Cyc. 1014; (8) 3 Cyc. 214.