192 Ind. 384 | Ind. | 1922
Lead Opinion
Appellee instituted this action against the appellant to recover damages for personal injuries sustained by her in a collision between one of appellant’s interurban cars and the automobile in which the appellee was riding. The collision occurred November 25, 1917, at about 8 o’clock in the evening, at what is known as Stop 16, which is located about two miles west of Morristown.
The injury was alleged to have been caused by the negligence of appellant in the management of said interurban car; the negligence alleged being the failure to sound the whistle on said car at a distance of not
The complaint is in one paragraph and was answered by general denial. The cause was tried by a jury and a verdict was returned in favor of appellee, in the sum of $10,000.
Judgment was rendered on the verdict on December 18, 1919, in the sum of $10,000, and interest from December 10, 1919, the date of the return of said verdict, together with costs. Appellant filed its motion for a new trial, which was overruled and appellant excepted and appealed from the judgment rendered.
The only error assigned and not waived is that the Marion Superior Court erred in overruling appellant’s motion for a new trial. • The specifications of such motion presented in appellant’s brief are: The verdict of the jury is not sustained by sufficient evidence; the verdict of the jury is contrary to law; the damages assessed by the jury are excessive; the court erred in giving of its own motion instructions numbered 4, 13, 14, 16 and 22.
Appellant claims that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. Its exact contention is that the evidence affirm - atively shows that appellee was guilty of contributory negligence. The general rule is that the question whether or not one is guilty of negligence or contributory negligence is a question of fact to be determined by the jury trying the cause.
The burden is upon the plaintiff to prove negligence and upon the defendant to prove contributory negligence on the part of the plaintiff. The law is that if there is no evidence on the subject of contributory negligence of the plaintiff, the finding must be for the plaintiff on that issue.
In the City of Indianapolis v. Keeley (1906), 167 Ind. 516, 79 N. E. 499, it is held that where contributory negligence is relied upon in personal injury cases, each party charged the other with negligence under the issues joined, and the alleged negligence of each was a matter for the determination' of the jury from all the facts and circumstances given in evidence,- unaided by any presumption of law in favor of or against either party.
If there is any dispute as to the controlling facts on the question of contributory negligence, and if there is any room for different conclusions by reasonable men, then the question of contributory negligence is one of fact for the jury. Evansville, etc., R. Co. v. Berndt (1909), 172 Ind. 697, 88 N. E. 612; Beuhner Chair Co. v. Feulner (1905), 164 Ind. 368, 73 N. E. 816; Lake Erie, etc., R. Co. v. McFarren (1919), 188 Ind. 113, 122 N. E. 330.
It is only where there is no dispute as to the controlling facts and no room for different conclusions upon the part of reasonable minds as to the question of contributory negligence, that it becomes a question of law for the court.
The evidence shows that the plaintiff was riding in an automobile on the night of the accident as an invited guest; that she exercised no control over the operation of the car; that she was wholly unacquainted with the crossing and the surrounding country; that the automobile in which she was riding was being driven
That the interurban was being driven over the cross
The evidence pertaining to conditions at the crossing is not without contradiction. Appellee denies that. a full view of the crossing could be had from a point fifteen feet south of the crossing, while appellant contends that one could see an interurban car approaching from a distance of fourteen or fifteen feet south of the south rail, 1,000 feet and could see the headlight almost 2,000 feet. A witness testified that he had lived in the neighborhood of the crossing ten years and that he had made observations to determine how far a car approaching the crossing from the east could be seen from the public highway; that at a point fifteen feet from the crossing no clear view of the track east could be had; and that a point seven feet from the crossing a view of but 150 feet to the east could be had. His testimony described in detail the surroundings of the crossing and the obstructions to the view to the east.
Another witness testified that standing back from the crossing seven feet from the track you could see a ear a couple hundred feet. He also testified in detail as to the surroundings of the crossing. On top of the hill and to the east of the public highway there were a number of trees, a dwelling house, three or four outbuildings, shrubbery and undergrowth. Running alongside the hill to the south of the interurban track and east of the
On the night of the accident, the plaintiff, riding as the guest of one John Michael, approached the crossing from- the south. It was the first time the plaintiff had ridden in an automobile and the first time that she had visited that section of the state. She had no knowledge or acquaintance with the surrounding country and knew nothing of the conditions governing the crossing. John Michael drove the car as it approached the crossing; the plaintiff was riding in the right front seat of the machine. When the automobile approached within fifteen feet of the south rail of the interurban tracks, the driver brought the car to a full stop. Both she and the driver looked and listened for approaching cars or trains. They neither heard nor saw an approaching car. She did not look again until they were on the track when she saw the light of the car, heard the whistle of the car and heard the crash, all about the same time.
Appellant alleges that instruction No. 4, given by the court of its own motion, directs a verdict and wholly fails to include the element of freedom from contributory negligence. Instruction No. 4 is as fol-. lows:
“The mere fact that two persons were killed and the plaintiff injured while crossing the defendant’s. tracks on the occasion alleged in the complaint will not justify you in finding that the defendant was guilty of the alleged negligence in the complaint, and that alone will not entitle her to recover. To enable her to recover it must be shown by a preponderance of the evidence that the defendant was guilty of the alleged negligence described in the complaint.”
This instruction No. 4 is in substantially the same language as instruction No. 5, tendered by the defendant and refused by the court to be given, except the following clause: “To enable her to recover it must be shown by a preponderance of the evidence that the defendant was guilty of the alleged negligence described in the complaint.” •
The objection made by appellant that this instruction fails to include the element of freedom from contributory negligence and entirely omits the element of proximate cause is not well taken because instruction No. 2, given by the court of. its own motion informs the jury that before the plaintiff is entitled to recover she must establish by a fair preponderance of the evidence, each
If the plaintiff has failed to establish any of these propositions, she will not be entitled to recover in this action. Said instruction further states that if ■ plaintiff was guilty of contributory negligence proximately contributing to the injuries complained of, she would not be entitled to recover.
In instruction No. 3, given by the court of its own motion, the jury are told that negligence on the part of the defendant will not be presumed from the mere fact that an accident has happened; nor is there any presumption that the injuries complained of were the proximate result of negligence on the part of the defendant, if any there was; on the contrary plaintiff, in order to recover, must establish the negligence of which she alleges the defendant was guilty and that such alleged negligence was the proximate cause of the injuries of which she complained.
Instruction No. 4 is supplemented.by instructions Nos. 2 and 3, given by the court of its own motion, and is therefore not open to the objections urged against it by appellant.
The appellant is in error in saying that instruction No. 4 directs a verdict. See, Indianapolis Traction, etc., Co. v. Holtsclaw (1907), 41 Ind. App. 520, 82 N. E; 986. In considering this instruction and the other, instructions complained of by appellant it must be borne in mind that in determining whether or not a particular instruction is reversible error, the instructions as a whole must be considered with reference
Appellant also claims that instruction No. 13 is erroneous, in that it charges the jury unconditionally that appellee was not chargeable with the negligence of the driver and that his negligence could not be imputed to her. Instruction No. 13 is as follows: •
“The fact, as claimed, that the driver of the automobile in which the plaintiff was riding at the time of the accident was negligent in driving it will not render her chargeable with negligence. In other words, the negligence of the driver is not to be imputed to her or chargeable to her; but, notwithstanding this rule, it was as much her duty to use reasonable care and caution to learn of and avoid danger as it was the duty of the driver, and if she discovered the approaching car to warn him as soon as she saw it was dangerously near, unless she saw or knew he was fully conscious of its approach.”
This instruction is aided and supplemented by instructions Nos. 10 and 8, given by the court of its own motion.
In instruction No. 10 the jury were told that it was the duty of the plaintiff while riding in the automobile on a public highway to realize and have in mind that she was approaching danger and to ascertain for herself whether a car was approaching; if her view was obstructed then it was her duty to be all the more careful and use her sense of hearing. The law required her to use that degree of care and caution that a person of ordinary prudence and intelligence would be presumed to use under, similar circumstances.
In instruction No. 8 the jury were told that — “If you
Instruction No. 13, when taken in connection with .other instructions given, was not erroneous.
Appellant claims that instruction No. 14 is erroneous and harmful because it charges appellant with a duty-based on circumstances of which it could not learn by use of ordinary care. Said instruction is as follows:
“It is charged in the complaint that the defendant was running its interurban car at an unlawful rate of speed. There is no statute in this state that limits the rate of speed at which an interurban car may be run, but, notwithstanding that fact, if you should find that the car was running at a rate of speed which was dangerous to persons using this highway crossing, and you should also find that it was an act of negligence to run the car at the rate of speed it was running when and where the accident occurred, as alleged in the complaint, and that such rate of speed was the proximate cause of the injuries to the plaintiff, then you will find for the plaintiff if she herself was free from negligence materially contributing to her injury.. In other words, the rate of speed of an interurban car must be regulated at a crossing by the conditions surrounding that crossing at the time.”
It appears from the evidence of the motorman in charge of the car that he had been motorman for the Indianapolis and Cincinnati Traction Company since November 15, 1910. That he ran on the Shelbyville line to Greensburg and through Morristown and Rushville and Connersville, during practically all of that time. The conductor of the car had been conductor on this line for
It thus appears from the evidence that the conductor and motorman were both familiar with the conditions surrounding the crossing and had been for at least six years and nothing appears in the evidence to show that conditions there were any different on the night of this accident.
It must be assumed that the jury considered that instruction with reference to evidence introduced in the case which would indicate that all these conditions and surroundings which were present at the time of the accident on November 25, 1917, could have been known to such motorman and conductor by the use of ordinary care.
Instruction No. 6, given by the court of its own motion is as follows:
“The gist of the complaint herein is the alleged negligence of the defendant, which it is charged was the proximate cause of plaintiff’s injuries. If the defendant was not negligent as alleged, then there can be no recovery against it. The term ‘negligence’ may be briefly defined as the doing of some act or thing which ah ordinarily prudent person under similar circumstances surrounding the transaction under investigation would not have done, or the failure to do some act or thing which an ordinarily prudent person under similar circumstances surrounding the transaction under investigation would have done. Reasonable care or ordinary care is that degree of care which an ordinarily prudent person similarly situated, would have exercised under the circumstances surrounding the transaction under investigation.”
In instruction No. 21, given by the court of its own motion, the jury are told that the motorman in charge
Appellant claims that instruction No. 16 is erroneous because it says that said instruction assumed that appellant failed to sound the whistle on its car as it approached the crossing. Said instruction is as follows:
“Plaintiff, while traveling upon the public highway approaching the defendant’s track at such crossing, and in entering thereupon for the purpose of crossing the railroad track, had a right to assume that the defendant would perform its duty of giving warning of the approach of its car to the crossing by sounding the whistle on its car, yet failure to give such warning did not relieve the plaintiff from exercising ordinary care in approaching such track. at the crossing and entering upon it.”
An examination of instructions Nos. 15 and 23, show that the jury could not have understood such instruction No. 16 to assume that appellant failed to sound the whistle upon its car as it approached the crossing. Im struction No. 15 is as follows:
“In the complaint the plaintiff has alleged that the defendant failed and neglected to sound the whistle off the car at a point not less than eighty nor more than 100 rods before reaching the highway crossing and com-' ing into contact with the automobile in which she was
Appellant claims that instruction No. 22 is erroneous in that it assumes the defendant negligent as charged in the complaint. Instruction No. 22 is as follows:
“Under the law of this state in a case of this kind there is no such thing as comparative negligence, that is, the law does not permit you in arriving at your verdict to compare the negligence of the defendant, or its employes, with the alleged negligence of the plaintiff; for in this state the law is that although the defendant, or its employes, may have been guilty of negligence in running the car in question, yet if you find from a preponderance of the evidence that the plaintiff did not herself exercise reasonable care to protect herself from danger as she was required to exercise, as in these instructions defined, and if by such failure she proximately contributed to her injuries, then she cannot recover, and your verdict should be for the defendant, notwithstanding the negligence of the defendant or its employes.”
In instruction No. 2 the jury are told that before the plaintiff could recover she must establish by a fair preponderance of all the evidence in the cause that the defendant was negligent as charged in the complaint and that this negligence was the proximate cause of such injury.
Instruction No. 3, given by the court of its own motion, is to the same effect and in addition says that the negligence on the part of the defendant will not be presumed from the mere fact that an accident occurred and, in order to recover, the plaintiff must establish by
Instruction No. 22, when taken in connection with the other instructions given in the case, is not erroneous, and could not have misled the jury.
In Indianapolis Traction, etc., Co. v. Thornburg, supra, the court in the discussion of instructions says: “The instructions must be considered as an entirety.' In reality there is but one instruction, one charge, given to the jury. But because of the serial nature of thought and expression, the charge necessarily must consist of several paragraphs each of which is devoted to some particular feature of the case; and it is for convenience only that these paragraphs are numbered and designated as separate instructions. No instruction is to be regarded as independent and isolated, but rather as a related and connected part of the entire charge. The rule is that error in a particular instruction will not justify a reversal unless it be of such a nature as.to vitiate the whole charge. The entire charge is vitiated only when it is so erroneous that the jurors must have been misled as to the law of the case.”
Appellant insists that the damages assessed by the jury are excessive. In order to sustain appellant’s contention we would be required to hold that the amount fixed by the jury ($10,000) is so large that it cannot be explained on any reasonable hypothesis other than from prejudice, passion, partiality, corruption, or that some improper element was taken into account. Citizens Tel. Co. v. Prickett (1919), 189 Ind. 141, 125 N. E. 193, and cases there cited. See, also, Cleveland, etc., R. Co. v. Miller (1905), 165 Ind. 381, 74 N. E. 509; Creamery, etc., Co. v. Hotsenpillar (1902), 159 Ind. 99, 64 N. E. 600; Louisville, New Al
A witness for the defendant stated that she was on the interurban at the time of the accident and that she saw the plaintiff lying on the ground, and there was one eye lying on her cheek; that it had apparently been out of socket and was lying on her cheek; that there was blood all over her face.
The plaintiff testified that the accident occurred November 25, 1917; that at that time she was thirty-two years old. She said: “I don’t know what happened after I was hit. • Didn’t know anything for five or six days later. The first I knew I was at the Methodist Hospital when I became conscious. I was black and blue. There was a big hole in my head and my right ear was ground up. My arm lying on a pillow mashed and broken. My wrist was broken. I cannot close my left hand or bend my left wrist. When I was struck by the interurban I was blind. My eyes had been good. When I got so I could see the whites of my eyes were black for three months or more. My nose had been broken. I was in the hospital from the time I was hurt until three days before Christmas. After that went back every day for treatment for two months and one-half to three months. I then went to the Deaconess Hospital for treatment. Was there three weeks. Haven’t taken any other treatment because I haven’t had the means to do so. Cannot use my arm. My back was wrenched and sprained. I am not able to do housework and cannot do ironing, washing or sweeping. Have been suffering pain since I left the hospital all the time in my head, eyes and in my back. I have other effects of the injury. Have female trouble; have cramps and backache, cannot stand; other times have to go to bed and lie there. Before Novem
In view of the serious nature of her injuries, which is not disputed by any evidence, we cannot say that the damages are excessive.
No reversible error appearing in the record, the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion;
The appellee recovered a judgment for damages for personal injuries sustained when one of appellant’s interurban cars collided with an automobile in which she was riding. The collision occurred after dark on the evening of November 25, 1917, at a highway crossing in the country, about a mile and a half west of Morristown, in Shelby county, Indiana.
The complaint alleged that appellant was operating an interurban railroad and the car in question; that the interurban track ran in a westerly direction, and intersected the highway nearly at right angles; that east of the highway the track ran through a cut, and that south of the track on that side the surface of the ground was from three to fourteen feet higher than the highway, and covered with buildings and trees, and that this condition extended south from a point within fifteen or twenty feet of the track, and eastward many hundred feet; that said condition obstructed the view from the highway south of the track of cars approaching on the interurban railroad from the east, and interfered with hearing their approach; that appellee knew nothing about the highway or the country about there, or of the location of appellant’s track; that she was riding
There was evidence tending to prove the facts alleged in the complaint, together with, evidence designed to repel any inference of contributory negligence on the part of the appellee. A number of witnesses testified that the statutory signals for the crossing were not given. But there was also much evidence tending to prove that they were given, and that the appellee was guilty of contributory negligence in failing to see and hear the approaching car, if the automobile was stopped, and other evidence tending to show that, so far from being stopped to look and listen, the automobile was driven over a little hill and past the buildings and orchard, at high speed, upon the crossing, directly in front of the interurban car when it was running so fast that it could not be stopped until after the collision. There was also much evidence tending to impeach the appellee,, who was her own sole witness as to what she and
The court gave a series of instructions, to each of which the appellant reserved an exception, and specifications in the motion for a new trial presented for review those hereinafter set out.
Instruction No. 4, correctly told the jury that the fact that two persons were killed and appellee was injured when crossing appellant’s track did not establish appellant’s negligence nor entitle appellee to recover, and then added: “To enable her to recover it must be shown by a preponderance of the evidence that the defendant was guilty of the alleged negligence described in the complaint.” This instruction did not refer to the effect of contributory negligence as a defense to the action if shown by the evidence. Neither did the instruction next before it, nor either of the next two which followed. And while it did not specifically direct a verdict in favor of the appellee if any negligence of the appellant had been proved, it carried a clear implication that she might recover upon mere proof that appellant was guilty of the negligence charged. Standing alone it was clearly erroneous. But by instruction No. 2, which preceded the one under consideration, and Nos. 7, 8 and 10, which followed' it, the court expressly charged the jury that if appellee was guilty of negligence proximately contributing to her injury she would-not be entitled, to recover and the verdict should be for the appellant. These instructions so far supplemented the one from which the above quotation was made that I should not feel justified in reversing the judgment if this were the only error committed.
A number of witnesses testified positively that the whistle on the interurban car was sounded at the statutory distance from the crossing, and was also sounded 'half a mile farther back, and that it could be and was
There was evidence tending to prove that appellee was blameless; but there was also evidence tending to prove that appellee and her sister’s husband, with his brother and ¿ married woman whose husband was not along, left Indianapolis between eleven and twelve o’clock on •
The court gave an instruction (No. 18) which stated that if the driver was negligent that fact- would not make the appellee chargeable with negligence, but that it was her duty to use care to learn of danger, and if she discovered the approaching car to warn the driver as soon as she saw it. Neither this instruction nor any other that was given intimated that the appellee might be chargeable with the consequences of the driver’s negligence if she had gone with him for a pleasure ride, knowing that he had been drinking until he was “half shot” before they started for the ride, and if she knew1 that he drank some beer after they had driven four or five hours, and if he had driven her across four or five railroads and was driving toward the interurban crossing at a speed half as fast as fifty miles an hour, with knowledge that the crossing was there, and yet she did not leave the automobile and refuse to ride further with him, nor say anything to him about the manner in which he was running it. In effect this instruction took from the jury whatever defense, if any, the defendant might have been able to make on the ground that the appellee had voluntarily committed herself to the care of a driver that she knew would not exercise care, and was injured
Appellee denied that the driver had been drinking, or that they were out for a pleasure ride, or that the automobile was driven over the hill and on the track at high speed and without stopping. But appellant was entitled to go to the jury upon.all the questions as to which the evidence was conflicting
The court gave an instruction (No.. 14) that the complaint charged appellant with running its car at “an unlawful rate of speed,” and that, while no statute limits the speed at which an interurban car may run, yet if appellee was free from contributory negligence and the “rate of speed was the proximate cause of the injuries” to appellee, then, “if you should find that the car was running at a rate of speed which was dangerous to persons using this highway crossing, * * * you will ■find for the plaintiff. * * * In other words, the rate of speed of an interurban car must be regulated at a crossing by the conditions surrounding that crossing at the time.”
This was error. The appellant company could only be charged with negligence because of the high rate of speed at which it ran its car along its private right of way and across a highway in the country by reason of conditions surrounding the crossing in case those conditions were known to it or its servants engaged in running the car, or would have been known to it or them if due care to learn of the surrounding conditions had been exercised. No rate of speed could be an “unlawful rate” in and of itself, and the mere speed at which the car was run over such a crossing could not constitute
In my opinion the errors in giving the instructions numbered 13 and 14 were not cured by the other instructions given, and in view of the evidence above recited they were prejudicial, and the judgment ought to be reversed. Therefore I respectfully dissent from the prevailing opinion.
