190 Ind. 662 | Ind. | 1921
— Appellee, as administrator, sued appellant for damages for causing the death of appellee’s decedent, Otto J. Owen, while he was operating one of appellant’s railroad locomotives engaged in interstate commerce. Appellee recovered a general verdict and a judgment for $18,000 damages.
The complaint, in a single paragraph, is hereafter set out. Appellant filed motions to make the complaint more specific, in four particulars, as enumerated, which motions- were each overruled and appellant excepted. It then demurred to the complaint for alleged failure to state facts sufficient to constitute a cause of action, which demurrer was overruled and appellant excepted. After the verdict was returned, appellant duly filed its motion for a new trial for the alleged reasons that the verdict is not sustained by sufficient evidence and is contrary to law; that the damages are excessive; that the court erred in giving certain instructions, in refusing to give certain others which were requested, in permitting decedent’s widow to remain in the courtroom when the witnesses were ordered separated, and in admitting certain evidence and excluding certain other evidence. The motion for a new trial was overruled and appellant excepted. The court granted time to file a bill of exceptions, which was duly filed within the time allowed and appellant perfected its appeal. The errors properly assigned are overruling the motion to make the complaint more specific, overruling the demurrer to the complaint, and overruling the motion for a new trial.
The complaint alleged that appellee’s decedent, as an engineer, was operating an interstate extra freight train eastward under written orders to meet a west-bound extra at Maplewood, and to run his train into the sidetrack there from the west end of the siding, while the west-bound extra was required by the rules of appel
Appellant filed motions to make more specific: (1) The averment that it “negligently left a portion of said defendant’s said train standing on and blocking the main track,” as against the allegation that it was the duty of those in charge of that train “to occupy the main track adjoining said siding”; and (2) to fill the blank with reference to the number of feet that the locomotive stood from the west end of the switch; and (3) to state the facts supporting the alleged conclusion that “skid east-bound train was being run at a reasonable and proper speed at which to take said siding”; and (4) to state specifically the facts on which is based the alleged conclusion that the collision and injury “was caused solely by reason of the negligent acts and omissions of said defendant”; and it excepted to the overruling of each of such motions.
A demurrer to the complaint as failing to state facts sufficient to constitute a cause of action, in that (1) no negligence of appellant was shown, (2) the acts charged as negligence were not shown to have been the proximate cause of the accident, and (3) that negligence of the deceased was shown to have been the sole cause of the injury, was overruled and appellant excepted.
The court set out the complaint in full in its first instruction, without any suggestion as to which averments were material and which, if any, were not, and by its third instruction told the jury that, “If you find that such allegations have been proved by a fair preponderance of the evidence relevant thereto, then your finding as to such- issue should be for the plaintiff.”
This instruction did not purport to define contributory negligence as such, and did not mention, nor directly refer to, the effect of violating the rules established by the employer. Appellant admits that this definition of negligence “is reasonably accurate in a great many cases,” but complains that as applied to the conduct of railroad employes operating trains at a meeting point, whose conduct was covered by definite rules and instructions, it was not correct. But we think this objection is within the rule that where an instruction does not contain an incorrect statement of the law, but is defective only in what it omits to say, the remedy is to ask an instruction supplying the omission. Giving it was not reversible error. Cleveland, etc., R. Co. v. Harrison (1912), 178 Ind. 324, 327, 98 N. E. 729.
The language of the last sentence of this instruction did not expressly limit the jury to a consideration of facts and circumstances in evidence or before them as part of the case, nor limit to questions of the credibility of witnesses the consideration which the jury was authorized to give to “any other fact or circumstance which from their experience and observation they believed would aid them in arriving at the truth in this cause.” It told them in the most general terms that any such other fact or circumstance “may be considered and given such weight as you think it is justly entitled to.” This was error. Chicago, etc., R. Co. v. Fretz (1909), 173 Ind. 519, 534, 535, 90 N. E. 76; Monongahela River, etc., Co. v. Hardsaw (1907), 169 Ind. 147, 151, 81 N. E. 492; Sanitary Can Co. v. McKinney (1913), 52 Ind. App. 379, 386, 100 N. E. 785; Mesker v. Leonard (1911), 48 Ind. App. 642, 644, 96 N. E. 485; City of Delphi v. Lowery, Admx. (1881), 74 Ind. 520, 527, 39 Am. Rep. 98.
The appellee cites and relies on a number of decisions, in each of which the court held that under the facts of
An instruction (No. 8), without any suggestion of an-exception in case the only servant of appellant who was guilty of negligence was the decedent himself, and without stating that the negligence referred to must have
Whether or not it was reversible error to exclude the evidence of which appellant complains depends, in part, upon the evidence that was heard. Besides proof of the formal parts of the complaint, and evidence that part of the west-bound train stood on the main track adjoining the siding, and that the west switch was turned open, and that the locomotive from the west-bound'
The witness Cook, conductor on the east-bound train, was permitted over objections to answer the question “What was the duty of 308 West?” by saying that “308 should have been protected by a flag,” and to answer the question “What was your duty on approaching that siding?” by stating that as conductor he was supposed to know that the engineer was under full control when the trains were going to meet there, and appellant excepted in each case.
The witness Henderson, conductor of the west-bound train, was required, over an objection that it called for a conclusion as to what the rule meant, and an exception by appellant, to answer the question “Tell the jury why you did not send a flagman out in accordance with rule. 99.”
It is not a case where the verdict is so clearly right upon the evidence that the court is justified in disregarding intervening errors.
As the case must be tried again it is not best that we should express an opinion as to whether or not the verdict is supported by sufficient evidence, or the damages excessive.
The judgment is reversed, with directions to grant a new trial.
Myers, J., dissents. Townsend, C. J., dissents as to instruction No. 7.