Indianapolis Traction & Terminal Co. v. Vaughn
117 N.E. 673
Ind. Ct. App.
1917
Check Treatment
Ibach, P. J.

Appellee sued appellant to recover damages for personal injuries alleged to have been received by him in а collision between his wagon and one of appellant’s cars at a street crossing.

1. The case was submitted to a jury; but at the close of plaintiff’s evidence, which was all the evidence introduced, defendant (appellant) moved for a peremptory instruсtion in its favor which was denied and exception reserved; thereupon plaintiff (appellee) moved for a like instruction in his favоr, which was granted. The record discloses also -that, after appellant’s motion had been overruled and appellee’s mоtion had been granted, no request on appellant’s *583part was made that the whole case, 'or any part of it, should be left with the jury for their consideration. Under such a state of facts the request of both parties ‍​‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​‌​‌‌‌​‌‌​​‌​‌‍for a directed verdict amounts to an admission that thеre was no conflict in the testimony and a request that the facts be determined by the trial court. Deeter v. Burk (1915), 59 Ind. App. 449, 107 N. E. 304, 306, and cases cited. And the finding made by the court is conclusive here if there is any evidence to support it. Deeter v. Burk, supra; Merwin v. Magone (1895), 70 Fed. 776, 17 C. C. A. 361.

The same proposition has been stated in this language : “The effeсt of a request by each party for a direction of a verdict in his favor clothed the court with the functions of the jury, and it is well settled that in such case where the party whose request is denied, does not thereupon request to go to' the jury on the facts, a verdict directеd for the other party stands as would the finding of a jury, for the same party, in the absence of any direction, * * *. All the controverted facts and all inferable facts in support of the judgment will be deemed conclusively established in favor of the party for whom the verdict was direсted.” Thompson v. Simpson (1891), 128 N. Y. 270, 283, 28 N. E. 627, 630.

2. Appellant insists that the evidence does not show negligence on its part. There is evidence in the record tending to show that nо gong was sounded or signal of any kind given by appellant before it ran one of its cars against appellee’s wagon. The evidenсe also showed that the car ran with ‍​‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​‌​‌‌‌​‌‌​​‌​‌‍such force against appellee’s wagon as to leave one-half of it on the west sidе of the track, forty feet from the place where the collision occurred, and the other half, with the mules attached, was found on the east side of the track. Appellee was thrown fifty feet from the place *584of collision and the car ran about 100 feet аfter the collision occurred before it was stopped. The headlights were the same as used on the city cars, but were insufficient fоr cars running in the locality where there were no street lights. At that crossing persons intending to board the cars would strike matches to stop thе cars, and, when standing at the crossing and looking at an approaching car, it was impossible to ascertain how far away it was аt any time. Appellee testified that he drove his wagon east to the turn of Forty-fifth street where it intersects Pennsylvania street, then turned his wagоn to the right and drove south fifty feet and crossed at the regular Forty-fifth street crossing. He looked south “to see if a car was apprоaching when he first reached Pennsylvania street which was just as he turned south, and before he crossed the track he again looked nоrth. He saw no car coming and no lights, and heard no gong or other signal.” One witness testified that the night was dark and he saw the headlight but he could not tell how far it was from the crossing. Appellee’s mules and a portion of the wagon had passed over the crossing when the collision occurred, and appellee at the time was carrying a lighted lantern in his left hand on his left knee.

This, together with the other evidence introduced at the trial, is sufficient to warrant the conclusion that appellant was negligent; that appellee was free from negligence, and that the proximate cause of appellee’s injury was the negligence of appellant in failing to give any warning signаl of its approach, operating the car without a proper light, and with such speed as to cut through appellee’s wagоn and then run a distance of approximately 100 feet after the collision before the car was brought to a stop. If the car had been equipped with a better light, or if- it had been running slower, and a warning signal given when approaching the cross*585ing, appellee might hаve passed over the crossing without injury, but these were all questions of fact for the consideration of the trier of the facts, ‍​‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​‌​‌‌‌​‌‌​​‌​‌‍and they hаve all been determined against appellant. We are unable to say as a matter of law that there is no evidence to support the court’s finding.

3. It is also contended that the court erred in submitting the question of the amount of appellee’s damages to the jury аfter the instruction had been given directing a verdict for appellee. There seems to be authority supporting the practice adopted by the trial court in cases of unliquidated damages. Murch Bros., etc., Co. v. Johnson (1913), 203 Fed. 1, 121 C. C. A. 353. Furthermore, appellant was not harmed by this procedure and is in no рosition to complain. The bill of exceptions shows that there was no objection made at the time to this question being left to the jury, nоr was there any objection after the jury retired, nor at any time before the verdict was returned, and no claim of error was made by аppellant until the motion for a new trial was filed.

Where a party to a suit consents to the method of procedure adopted by the trial court and makes no objection ‍​‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​‌​‌‌‌​‌‌​​‌​‌‍and reserves no exception at the proper time, he cannot be heard tо complain afterwards in this court. Houk v. Citizens’ Nat. Bank (1912), 51 Ind. App. 628, 99 N. E. 437; Merchants’ Nat. Bank v. Nees (1916), 62 Ind. App. 290, 110 N. E. 73, 76, 112 N. E. 904.

4. The evidence in this case on the question of appellee’s contributory negligence is not suсh as requires us to say that he was guilty of contributory negligence as a matter of law. Inferences may very properly be drawn from the evidence which will support the decision of the court, and in such case this court will not reverse on the ground of insufficiency of *586the evidence. Bright Nat. Bank v. Hartman (1915), 61 Ind. App. 440, 109 N. E. 846, 850.

We are satisfied, therefore, that the evidence was not such as required the court to hold as a matter of law that appellee wаs guilty of contributory negligence, or that appellant’s negligence was not the proximate cause of appellee’s injury. On the other hand, we believe that the evidence and the facts to be legitimately inferred therefrom warranted the court in directing a vеrdict for appellee.

Other kindred questions are discussed by appellant, but as none of them, in any event, ‍​‌​‌‌‌​‌​‌​‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​‌‌​‌‌​‌​‌‌‌​‌‌​​‌​‌‍would change the result announced, we deem it unnecessary to extend this opinion.

Judgment affirmed.

Note. — Reported in 117 N. E. 673. See under (1) 4 C. J. 903; (2) 36 Cyc 1600, 1605.