20 Ind. App. 427 | Ind. Ct. App. | 1898
Appellant sued, before a justice of the peace, for damages on account of injuries to Ms buggy and team of horses, occasioned by the negligence of appellee’s employes. The complaint alleges that appellee is a corporation, acting and doing business under the laws of the State of Indiana; that on the 24th day of May, 1895, appellant was driving a team of horses with buggy attached thereto, lawfully, without any fault or negligence on his part, along and upon a certain public highway and upon the track of appellant; that the defendant did then and there carelessly and unlawfully run its certain street car over, against and upon said appellant’s buggy and horses and injured the same in the sum of flOO. The trial before the justice of the peace resulted in a judgment in favor of appellee. An appeal was taken to the Marion Superior Court. The cause was submitted to a jury, and upon request a special verdict was returned, upon which the court rendered judgment in favor of appellee.
The errors assigned on this appeal are: (1) That
The grounds for a new trial are: (1) The special verdict is contrary to law, and not sustained by sufficient evidence; (2) it is not sustained by the evidence, and is contrary to the law and the evidence; (3) the damages assessed are too small, the evidence showing damage to the amount of $50; (4) error of law occurring on the trial in this, — thatthe court failed to charge the jury as to the law of the case as provided by statute; (5) error of law occurring in this, — that the court failed to inform the plaintiff or his attorneys that a special verdict had been demanded until after the evidence had been closed; (6) the verdict of the jury, as set out in said questions and answers, is contradictory, indefinite, and so uncertain that no judgment can be rendered thereon.”
The evidence is not in the record. The first, second and third grounds for a new trial therefore, cannot be considered. The fourth reason cannot be considered for the reason that the instructions of the court are not in the record. The statutes in force at the time of the trial of this cause, required that the request for a special verdict should be made before the introduction of any evidence, and should be prepared by counsel on either side of such cause and submitted to the court, etc. It does not appear that appellant was not given ample time to prepare a verdict for submission to the court, nor that he did not prepare a verdict, nor that he was in any way prejudiced by the failure of the
The second and third specifications of the assignment of error may be properly considered together. To warrant a judgment on the special verdict, the findings should show that the defendant company was guilty of negligence which proximately caused the injury to appellant’s horses and buggy, and that he was himself free from fault contributing to said injury. To these propositions the following interrogatories and answers, constituting in part the special verdict, are pertinent: “(1) Q. Did the buggy of the plaintiff and a street car belonging to the defendant collide on the Michigan road on or about May 15, 1893? A. Yes (or 24th of May.) (2) Q. Was the plaintiff, immediately before said collision, driving said buggy along the Michigan road at a safe distance from the tracks of defendant? A. Yes. (3) Q. Did the plaintiff, immediately before said collision, turn into said tracks of the defendant for the purpose of passing another vehicle? A. Yes. (4) Q. At the time the plaintiff so turned upon the tracks of defendant, was the car of defendant about thirty or forty feet behind plaintiff? A. Yes. (5) Q. Had the motorman of said defendant any warning that the plaintiff was about to turn upon the tracks, before plaintiff did so turn? A. No. (6) After the plaintiff so turned upon the tracks of defendant, did the motorman of the defendant attempt to stop his car before it should collide with plaintiff’s buggy? A. Yes. (I) Q. In making
Waiving tke question as to tke care exercised by tke appellant, 'although it appears from the verdict that he drove upon tke track from a place of safety, tke facts in interrogatories and answers numbered 5, 6 and 7, above set out, fully acquit tke defendant of all negligence! Tke verdict does not show negligence upon tke part of appellee, nor facts from which it might be inferred. Judgment affirmed.
