141 N.E. 473 | Ind. Ct. App. | 1923
Lead Opinion
This is an action by appellant against appellee to recover damages for personal injuries, alleged to have been sustained by the former while in the employ of the latter, in railroad service. After the joining of issues on the complaint, the cause was submitted to a jury for trial. At the conclusion of appellant's evidence, each party filed a motion requesting the court to instruct the jury to return a verdict in his favor. Thereupon, the court withdrew the cause from the jury, found for appellee, and rendered judgment accordingly. Appellant filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal.
It is well settled that where a cause is submitted to a jury for trial, and each party, at the conclusion of plaintiff's evidence, or at the conclusion of all the evidence, 1, 2. requests the court to instruct the jury to return a verdict in his favor, such action is, in effect, a joint request for the withdrawal of the cause from the jury, and for the submission of the same to the court for its decision.Deeter v. Burk (1914),
The only other reasons for a new trial contained in appellant's motion therefor are that the decision of the court is not sustained by sufficient evidence, and is contrary to law. 3. An examination of the record discloses some evidence to sustain the decision of the court. This, as has often been held, is sufficient on appeal. Indianapolis Traction, etc., Co.
v. Vaughn, supra; Toledo, etc., R. Co. v. Milner (1915),
The judgment is, therefore, affirmed.
Addendum
ON PETITION FOR REHEARING.
Appellant contends, on his petition for rehearing, that the court determined this appeal on a question of fact, when there is no question of fact involved, since the evidence is 4. uncontradicted. He appears to assume that where the evidence is uncontradicted, no questions of fact ever follow, but only questions of law. This is not true. On the contrary, questions involving ultimate facts always arise from uncontradicted evidence where the primary facts established thereby might lead men of equal fairness and intelligence to draw different inferences therefrom. National Surety Co. v. State
(1913),
It is also contended that, since this is an action under the Employer's Liability Act of this State, in which it is charged that appellant received his injuries while obeying an 5, 6. order of one of appellee's employees, to which he was obliged to conform, that contributory negligence is not a defense, under the following provision thereof:
"No such injured employee shall be held to have been guilty of negligence or contributory negligence where the injury complained of resulted from such employee's obedience or conformity to any order or direction of the employer or of any employee to whose orders or directions he was under obligation to conform or obey, although such order or direction was a deviation from other rules, orders or directions previously made by such employer." § 8020b Burns 1914.
It has been held, however, that this provision of the act does not eliminate contributory negligence as a defense under all circumstances, but that it remains a defense where an employee receives an injury, not from the mere fact that he obeyed the order, but by reason of the negligent manner in which he carried it out. S.W. Little Coal Co. v. O'Brien (1916),
The petition for rehearing is denied.
