72 Ind. App. 265 | Ind. Ct. App. | 1920
—Appellee Griswold, while a guest in an automobile owned and operated by Henry Sanders, was injured by a collision between a train of cars owned by appellant, which was backed against said automobile at the crossing of appellant’s railroad and Windsor street, in the city of Montpelier. The complaint is in three paragraphs. The facts as alleged in the first and second paragraphs are in substance the same as are set out in the complaint in the case of Lake Erie, etc., R. Co. v. Sanders (1920), post 283, 125 N. E. 793; the only material difference being that the flagman, Kindlesparker, is made a defendant in the instant case.
The negligence charged in the first and second paragraphs of complaint is that appellant’s watchman,
After the jury had been impaneled and while the opening statements were being made, appellant filed a motion asking that the appellee he required to submit to a physical examination by physicians to be selected and appointed by the court. This motion was overruled. At the conclusion of appellee’s evidence in chief appellant filed a second motion asking that the appellee he required to submit to a physical examination. This motion was also overruled.
The appellant next contends that the court erred in overruling its motion for a venire de novo. The contention of appellant is that the verdict did not cover all the issues, and was so ambiguous that no judgment could be rendered thereon. The verdict reads as follows: “We, the jury, find for the plaintiff against the defendant, the Lake Erie and Western Eailroad Company, and fix and assess his damages in the sum of $2,000.00. ’ ’
The next contention is that the court erred in overruling appellant’s motion for a new trial. The specifications in the motion for a new trial not waived are that the verdict is not sustained by sufficient evidence, and that the court erred in giving on its own motion instructions Nos. 1, 2, 9% and 14.
Instruction No. 1, after giving a recital of the allegations of the first paragraph of complaint, concludes as follows: “The second and third paragraphs of the complaint are substantially the same as the first, except that in the third paragraph it is charged that on the 17th day of October, 1916, and for a long time prior thereto, the defendant Kindlesparker was in the employ of the defendant company as a flagman
Instruction No. 2 informed the jury that, if appellee had established the material allegations of his complaint or some paragraph, he was entitled to recover.
Instruction No. 9% was as follows: “At a street crossing in a city where a steam railroad crosses a public street, both the railroad company and persons attempting to pass over the railroad tracks at such crossing have an equal right to the use of the crossing, except, however, that where a person attempting to cross the railroad tracks and a locomotive or cars are approaching such crossing at the same time, then the locomotive and cars have the right of way fo.r the reason that they must travel upon the track, while the traveler may travel elsewhere, but the court instructs the jury that the place where the accident happened was a public street, and that defendant did not have an exclusive right for the purpose of making up its trains or switching cars, and that the public and the plaintiff had the same right to use the highway as the defendant had, and that defendant’s servants in the movement of its cars upon said street had no right to assume that the way was clear, but were bound to exercise ordinary care before moving such cars to ascertain and discover whether any. person upon the street might be injured by such movement.”
Instruction No. 14 reads as follows: “By his third
By the first instruction the jury was given to understand that one of the elements of negligence was the employment by appellant of an incompetent and unfit person to perform the duties of flagman, and
By the fourteenth instruction the attention of the jury was specifically directed to the allegations in the third paragraph of complaint seeking to charge the appellant with negligence on account of the employment of Kindlesparker, and informed the jury that, in determining the question of Kindlesparker’s incompetency and unfitness to act as a flagman, the jury was authorized to consider any evidence given, going to the conduct of said Kindlesparker as such flagman on other similar occasions. This instruction also authorized the jury, if they believed that Kindlesparker was an unfit and improper person to act as flagman, and if said unfitness produced or materially contributed to produce the collision, and if appellant had notice of such unfitness, such facts would warrant the jury in returning a verdict for the appellee.
This case involves no question of injury to a servant. Whether Kindlesparker was competent or fit v
In Fonda v. St. Paul City R. Co. (1898), 71 Minn. 438, 74 N. W. 166, 70 Am. St. 341, the court, in passing upon the admissibility of evidence, used the following-language: “Upon the trial, the court against the objection of the defendant, admitted evidence of the general incompetency of the motorman, based on the observations of witnesses who had seen him operate his car on prior occasions. We think this was error. The defendant, is liable, if at all, for the acts of its servant upon the doctrine of respondeat superior. If the motorman was negligent on this occasion, the defendant is liable, no matter how competent he was or how habitually careful .he had been on other occasions. On the other hand, if he was not negligent on this occasion, the defendant is not liable, notwithstanding that he may have been incompetent or habitually careless on former occasions. The sole issue, aside from that as to plaintiff’s contributory negli
The wording of instruction No. 9y2 is subject to criticism, especially that part of it wherein the court said: “But the court instructs the jury that the place where-the accident happened was a public street, and that defendant did not have an exclusive right for the purpose of making up its trains, etc.” What the court had in mind and what it intended to say was that the appellant did not have an “exclusive right to the street or to the use of the street for the purpose of making up its trains.”
In the latter part of the instruction the jury was told that the appellant was bound to exercise ordinary care, “before moving such cars,” to ascertain and discover whether any person upon the street
Instruction No. 2 is correct as an abstract proposition1. There was no error in giving it. The error was in the other instructions which informed the jury that the"act of the appellant in employing and retaining in its service an incompetent flagman with knowledge of such unfitness was one of the material allegations of the complaint.
Judgment reversed, with instructions to grant a new trial as to both defendants, and for other proceedings not inconsistent with this opinion.