26 Ind. App. 575 | Ind. Ct. App. | 1901
Action by appellee against appellant to recover for injuries received on, account of the alleged negligence of appellant. Issues joinpd by general denial. Trial by jury; verdict and judgment in favor of appellee.
The averments of the complaint are, in substance, as follows: That on or about September 25, 1898, appellee boarded one of the street cars of appellant corporation, at the corner of Cottage avenue and Shelby street in said city, for the purpose of being carried as a passenger to the corner of Washington and Pennsylvania streets in said city; that appellant was a common carrier for hire; that after boarding said car she paid appellant her fare. It is further averred that appellee was carried upon said car to her destination aforesaid; that thereupon said car was stopped for the purpose of allowing appellee to get off; that while she was in the act of getting off of said car, and before she had
We will first consider the question as to the sufficiency of the complaint. Counsel for appellant contend that the complaint is not good for the reasons “(1 ) that it does not sufficiently charge negligence upon the part of appellant; (2) that it does not show that the accident happened and the injuries were caused without concurring negligence upon the part of the appellee”, and cite in support of such position Citizens St. R. Co. v. Wagner, 24 Ind. App. 556. The facts in that case, in substance, were: That appellee signaled to stop the car; that thereupon its-speed was greatly slackened, and that upon reaching appellee it was running very slowly; that he then took hold of the handle of the car and attempted to step upon the car; that thereupon the speed of the same was negligently and carelessly increased, without notice, etc., to appellee, and without his fault or negligence, thereby throwing him to the ground and causing the injuries complained of. The complaint was held insufficient in that it did not aver that appellee was free from contributory negligence, since it did not allege that he was without fault in attempting to board the car while it was moving, or that he was free from negligence in the manner in which he took hold of the handle. The complaint avers that appellee was free from fault only as regards the starting of the car. It in no way shows
Appellant, in its motion, has assigned eighteen reasons for a new trial. The first reason assigned is that the verdict is not sustained by sufficient evidence. Counsel for appellant contend there is no evidence to support the averment of the complaint that the ear suddenly started forward. Appellee, on direct examination, testified that as she was getting off the car “it gave me a jerk and threw me out; I don’t know what kind of a motion it was”, (referring to the forward or backward motion of the car). And on cross-examination, in answer to the following question, “You did not, as a matter of fact, see any part of the car move ?” she said, “I know it moved. It took my feet from under me.” Counsel also insist that there is no evidence to satisfy the allegation of the complaint that the car moved or started forward, claiming such allegation to be a material one and that proof of it is essential to a recovery. There was evidence tending to prove that the car moved, either forward or backward. It is not material to a recovery under the issues that it be shown that the car started “forward”; but it is sufficient if it be shown that the car started in either
Where a verdict rests upon contradictory evidence, or where there is any evidence at all to support it, no difference how weak or unsatisfactory it may be, the remedy is with the trial court in passing upon a motion for a new trial, and not by appeal. In this case the trial court passed upon the sufficiency of the evidence to support the verdict in its ruling upon the motion for a new trial, and its conclusion was that there was evidence to support it. In such case the appellate tribunal is left powerless to interfere.
The sixteenth, seventeenth, and eighteenth' causes assigned for a new trial relate to the manner in which the argument before the jury was made, and may be considered together. The attorneys for the respective parties having failed to agree as to the time and manner in which the cause should be argued, the court announced that one and one-half hours would be allowed each side. Thereupon one of the attorneys for appellee made an argument occupying twenty minutes of the time allowed. At its conclusion, counsel for appellant announced that he was willing to submit the cause to the jury without further argument, and declined to present his views of the ease. Attorneys for appellee objected
In the criminal code, the order of trial is prescribed, and jt is there provided that if the defendant or his counsel refuse to argue the case after the prosecuting attorney had made his opening statement, that shall be the only argument allowed in the case. §1892 Burns 1894, §1823 Homer 1897. No such provision is found in the civil code. If the legislature had intended that the same rule should apply in the trial of a civil cause, it would have made a like provision. As the trial court has discretionary power in regulating the argument in the trial of civil causes, when it exercises such discretion, its action therein will not be reviewed on appeal unless there is a clear abuse of such discretion. We find no such abuse in this case.
Appellant also urges that the court erred in giving instructions one and eight upon its own motion. The objection urged to these instructions is that they did not correctly state the issues. The act of negligence charged in the complaint is, that while appellee was alighting from the car the appellant wrongfully and negligently “started said car forward with a sudden quick jerk”, etc. In -the first instruc
It is proper for us to say that appellee’s brief contains language that reflects no credit'on its author. We would be derelict in the discharge of a public duty if we passed it by unmentioned. Such a brief as we have in this case on behalf of appellee has no fit place upon the records of this court. It is therefore ordered that it be stricken from the files.
Judgment affirmed.