17 Ind. App. 619 | Ind. Ct. App. | 1897
This case was reversed in this court in 1893, and is reported in 8 Ind. App. 404. Subsequently, an amended complaint was filed in the lower court, and the cause put at issue by a general denial. The theory of the amended complaint is that the appellee was injured by reason of the violation of the implied contract made by appellant to safely carry her to her destination, and permit her to alight there. There was a trial by jury, a special verdict, and assess
The only errors assigned, urged by appellant, are numbered three, four and five, and are upon the following grounds: (3) Error in overruling appellant’s motion for judgment in its favor on the special verdict; (4) Error in overruling motion to change and modify the judgment; (5) Error in overruling appellant’s motion to modify the judgment in this, to reduce the amount of recovery to fifty dollars, for the reason that there are no facts found in the verdict authorizing any judgment for a larger sum, and for the reason that on the facts found in said special verdict, the amount for which said judgment is entered is improper.
January 20, 1896, the jury returned the special verdict, on which verdict appellant moved for judgment in its favor. On January 24, 1896, while said motion was still pending, appellant moved the court for a reduction of the damages awarded plaintiff from four hundred dollars, to fifty .dollars. March 26, 1896, appellant withdrew its motion for a reduction of the amount of damages awarded appellee. March 31, appellant’s motion for a judgment on the verdict was overruled and it refiled its motion for a reduction of the amount awarded to fifty dollars. April 1, 1896, appellee moved the court for judgment in her favor on the special verdict, which motion was' sustained and appellant excepted. Appellant then moved the court to reduce the amount of recovery in said judgment to fifty dollars, for the reason that there were no facts found in the special verdict authorizing any judgment for a larger sum, and that on the facts of said special verdict the .amount for. which said judgment is entered is an improper judgment. Appellee contends that the filing of the motion to reduce the
We think the more reasonable view to take is, that inasmuch as the court treated it as still pending in the case, and ruled upon it without the withdrawal of the second motion, that it should be considered as having been refiled.
Appellant’s motion to reduce the amount of damages does not fall within the fourth or fifth errors assigned, for they refer to the overruling of the motion to modify the judgment subsequently rendered. Appellee insists that the overruling of the motion to modify the judgment assigned as the fourth and fifth errors, is not available, claiming that the only way that the amount of the damages named in the verdict of a jury can be questioned is by a motion for a new trial, assigning the fifth cause in actions on contract, and assigning-its overruling as error.
Elliott on Appellate Procedure, section 855, says: “A party cannot attack the assessment of damages unless he assigns as a cause for a new trial the specific reason that the amount awarded is erroneous.”
Section 856: “The rule in this state is that in order to question the amount of damages assessed in actions * * * ecu contractu, the fifth statutory cause must be specified.”
Said fifth cause reads as follows (section 559, E. S. 1881): “Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or retention of property.”
The third assignment, then, only remains for our determination. This assignment challenges (1) the sufficiency of the special verdict to uphold any judgment in favor of appellee; (2) the sufficiency of the special verdict to uphold the judgment for the amount rendered.
It appears from the special verdict that the appellant was a corporation owning and operating a railway extending from Delphi to Fair Oaks, Indiana, and was a common carrier of passengers. It owned depots and platforms at Delphi, Rensselaer and Surray, which were safe and convenient for travelers to enter and depart. Its trains ran daily and were scheduled to stop at Rensselaer. It had authority at Delphi to issue tickets to Rensselaer. The appellee bought a ticket at Delphi for Rensselaer and paid for the same $1.15.
She was young and inexperienced, traveling alone, and carrying a satchel weighing 25 pounds. She expected to meet her parents at Rensselaer, at which place they were that day, with a conveyance. Her parents resided eight miles from Rensselaer and seven miles from Surray. She had friends at Rensselaer with whom she expected to stay and await an opportunity to reach home. She gave up her ticket. The car did not stop at Rensselaer, but ran about one thousand feet beyond, .and stopped where the appellee could not safely alight. When the car stopped she left her seat and walked to the platform of the car for the purpose of alighting therefrom. The servants of defendant promised to return the train to the platform. Appellee believed this and at the request of ap
The amended complaint was evidently drafted with a view of coming within the ruling of Evansville, etc., R. R. Co. v. Kyte, 6 Ind. App. 52. The judgment on the special verdict can only be upheld on the theory of breach of contract with aggravating circumstances. The damages resulting, were caused by reason of the violation of a contract, which violation was attended with anxiety of mind and disappointment, and physical inconvenience and discomfort to appellee. The violation of the contract does not seem to have been accompanied by any extenuating circumstances. Appellant concedes, by its last motion, that it was at fault.
Under all the circumstances the jury found four hundred dollars to be a reasonable compensation, and the trial court who presided held that the finding was justified. We cannot say that the amount was excessive.
Judgment affirmed.
Wiley, C. J., took no part.