78 Ind. App. 495 | Ind. Ct. App. | 1922
— Action by appellee Halleck, hereinafter designated as appellee, against appellant and appellee Jordan, to recover damages for personal injuries alleged to have been sustained by reason of a collision between an automobile in which appellees were riding and a locomotive and train of cars on appellant’s railroad tracks, at the intersection of the tracks with a public street in the city of Muncie. It will not be necessary to set out all the averments of the complaint. Among other allegations, it is averred, in substance, that the plaintiff was riding in the back seat of an automobile owned and driven by appellee Jordan, as his guest, the top of the automobile being up at the time; that as the automobile approached the crossing Jordan did not stop, look and listen for approaching trains; that appellant failed to have an electric light burning at the crossing as required by ordinance, although it, was nighttime, and so dark that travelers riding in the rear seat of the automobile with the top up could not see the crossing before arriving thereat; that appellant by its towerman negligently lowered its crossing gates upon the automobile “as it was about to enter and was entering upon” the tracks, without ringing any bell or giving any signal thereof; that appellant negligently ran its locomotive and train against the automobile without ringing any bell or giving any signal of its approach, and at a speed of twenty-five miles per hour in violation of a city ordinance; that appellee, at the time did not know that Jordan intended to cross the railroad tracks, and did not see the tracks, and did not hear the engine or cars until the automobile was upon the crossing.
Appellant’s separate demurrer to the complaint having been overruled, the parties defendant each answered by denial. Appellant also filed a special answer alleging that at the time of the collision there was in full
Trial resulted in a judgment in favor of appellee, and against both defendants, from which Jordan does not appeal.
Appellant has assigned as errors, the action of the court in (1) overruling its separate demurrer to the complaint; (2) overruling its motion for venire de novo; (3) overruling its motion for judgment on answers to interrogatories returned by the jury notwithstanding the general verdict; and (4) overruling its motion for new trial.
Appellant calls attention to the averment in the complaint that Jordan, the driver, of the automobile, did not stop his automobile, and did not look and listen for approaching trains, before attempting to go upon the crossing, but carelessly and negligently drove upon the tracks; and contends that the only inference to be drawn from this averment is that Jordan by looking and listening could have seen and heard the train approaching in time to have avoided the collision, and that appellee, by looking and listening might also have seen the train in time to have avoided the injury; and that, therefore, the complaint discloses that appellee was guilty of negligence which contributed to her injury, and is insufficient. Appellant’s contention is without merit. It does not necessarily follow that because the driver of the automobile was negligent in not looking and listening for approaching trains the inference must be drawn that appellee, who was his guest, was guilty of like negligence, where it. is also averred that appellee was, at the time, sitting in the back seat of the automobile; that it.was nighttime; that appellant
The jury returned the following verdict: “We, the jury, find for the plaintiff against both of the defendants, and assess her damages at $800, Lake Erie and Western R. Co. $700, John Jordan $100.” Appellant moved for a venire de novo, on the ground that the verdict was. defective in form in that it attempted to apportion plaintiff’s recovery between the two defendants.
The jury had no authority to apportion the damages, for it is fundamental that in an action for damages against two or more joint wrong-doers, the judgment must be for a single sum against all defendants found to be responsible. Everroad v. Gabbert (1882), 83 Ind. 489. It is also well established that: “A verdict finding the whole issue, or the substance of it, is not vitiated, by finding more. Por the finding of what was not in issue is but surplusage.” Gould, Pleading (5th ed.) 486. It will be observed that the jury by its verdict found for plaintiff against both defendants, and assessed the damages at $800. If the jury had been content to stop there, no objection could
The rules of law which govern in the consideration of a motion for judgment on the answers of a jury to interrogatories notwithstanding a general verdict to the contrary, are so familiar, and have been stated so often, that it is needless to repeat them here. Nor would any good purpose be served by a discussion in this opinion of the ninety-two special findings of the jury, or any of them. It is sufficient to say that we have examined with much care the interrogatories and answers, and find that the answers are not in irreconcilable conflict with the general verdict.
Interrogatory 84, with the jury’s answer thereto, is as follows: “Did the employes of the defendant company in charge of said locomotive blow the whistle on said locomotive as a crossing signal at a point 1000 feet east of Ohio avenue?” Answer. “Doubtful.” Before the jury was discharged, appellant moved that the interrogatory be resubmitted with instructions to answer the same definitely and correctly, which motion was by the court overruled. It is appar
There was no reversible error in the giving of instructions, nor in the refusal of the court to give the instructions tendered by appellant. The instructions when taken as a whole fairly state the law of the case.
The verdict is amply sustained by the evidence. Affirmed.