158 Ind. 662 | Ind. | 1902
The appellant by his complaint charged the appellee with negligently causing its street-car to collide with a buggy in which he was driving, thereby injuring him. On an issue formed by the filing of a general denial to the complaint the cause was submitted to a jury for trial. The jury returned a verdict for appellant, and also made answer to fifty-nine interrogatories that the court, on the motion of appellee, caused to be submitted to such jury. The court sustained a motion of appellee for judgment in its favor on the answers to interrogatories, and rendered judgment accordingly. The appellant, in the manner required by law, has presented the question as to the propriety of the above rulings for our determination. It is contended by appellee’s counsel, in support of the action of the trial court, that the answers to interrogatories affirmatively show that appellant was guilty of contributory negligence, and that it is also thereby shown that appellee was not guilty of negligence as charged.
In passing on a motion for judgment notwithstanding the verdict, it should he borne in mind that the verdict necessarily covers the whole issue, and that it solves every material fact against the party against whom it is rendered. To enable the latter successfully to interpose the special findings of the jury upon particular questions of fact, as a reason for judgment in his favor, he must, at least, have special findings that stand in such clear antagonism to the general verdict that the two can not coexist. Amidon v. Gaff, 24 Ind. 128; Ridgeway v. Dearinger, 42 Ind. 157; McCallister v. Mount, 73 Ind. 559; Cook v. Howe, 77 Ind. 442; Pittsburgh, etc., R. Co. v. Martin, 82 Ind. 476; Baldwin v. Shuter, 82 Ind. 560; Pennsylvania Co. v. Smith, 98 Ind. 42; Indianapolis, etc., R. Co. v. Lewis, 119 Ind. 218; Graham v. Payne, 122 Ind. 403; Ohio, etc., R. Co. v. Trow
It would needlessly prolong this opinion to exhibit the interrogatories and their respective answers. They are silent upon the question as to how fast the car was running. They show that the collision occurred in the nighttime, at the intersection of Washington and Jefferson streets in the city of Kokomo; that the appellant was crossing appellee’s track, that was situate on Washington street, in proceeding east, along Jefferson street, in a carriage, when a street-car of appellee, approaching from the south, collided with his conveyance; that he was familiar with the fact that cars frequently ran on said track; that, as he was aware, his horse was afraid of street-cars; that the view to the south on Washington street, as a traveler approached it on Jefferson street from the west, was obstructed by a building abutting upon the southwest corner of the street intersection ; that at the west line of said intersection there was a view to' the south of fifty feet; that there was an arc light that was burning almost over the place where the collision occurred; that the car had an electric headlight that was burning brightly; that the motorman sounded the gong at a point 160 feet south of the place of collision; that, upon
The findings being silent relative to the truth of the averments as to the high and dangerous rate of speed at which said car approached the street intersection, it was the duty of the trial court to indulge the presumption, as it was not permitted.to consider, for the purposes of the motion, the evidence actually introduced, that the averments as to speed were sustained by the evidence, and upon that hypothesis appellee stands clearly convicted by the verdict of negligence. It was error to sustain appellee’s motion for judgment in its favor upon the answers to- interrogatories.
In apprehension of this conclusion,, counsel for appellee have argued the question as to what ought to be the mandate of this court in the event of a reversal, and this has led counsel for appellant, in their reply brief, to- argue the same question. By express provision of statute, this court is authorized, in reversing a judgment, to order a new trial, when the justice of the case requires it (§672 Burns 1901, §660 Horner 1901) ; and this court has often exercised such authority. Matchett v. Cincinnati, etc., R. Co., 132 Ind. 334, and cases there cited; Mitchell v. Brawley, 140 Ind. 216; and cases cited in Stewart v. Patrick, 5 Ind. App. 50. It is our conclusion that this should be the result in this case.
The judgment is reversed, with an instruction to the trial court to grant appellee a new trial.