189 Ind. 683 | Ind. | 1920
Appellant began this action against appellee to recover damages on account of personal injuries which it is alleged was brought about by-reason of the alleged negligence of appellee in permitting its track and railroad line at a public high•way crossing to remain in a dangerous condition. The specific charge in the complaint is that the rails of the appellee’s track at the said crossing were highly charged with electricity, and that appellee carelessly and negligently suffered and permitted the bonds'uniting and connecting the said rails to become and remain out of repair, thereby making said track dangerous to persons and animals upon and crossing over the same. The issues were closed by a general denial. At the close of appellant’s evidence, the jury by direction of the court returned a verdict for appellee, and judgment was rendered accordingly. The action of the court in directing the jury to return a verdict for appellee is assigned as a cau.se for a new trial.
In view of the evidence appellant asserts that the court erred in directing the jury to- return a verdict in favor’ of appellee. on the grounds- that it was not sufficient, to éus¿
The rules thus stated apply té the decision of the question presented by -a’ demurrer -to the- evidence. Lake Shore, etc., R. Co. v. Foster (1885), 104 Ind. 293; 4 N. E. 20, 54 Am. Rep. 319; Fritz v. Clark (1881), 80 Ind. 591; Milburn v. Phillips (1894), 136 Ind. 680, 34 N. E. 983, 36 N. E. 360.
The-same rules apply when the question arises An a motion to direct a verdict. Curryer v. Oliver (1901), 27 Ind. App. 424, 60 N. E. 364, 61 N. E. 593; Elliott, App. Proc. §687; Howard v. Indianapolis St. R. Co. (1902), 29 Ind. App. 514, 64 N. E. 890.
: When the question of the sufficiency of the evidence is presented by a motion to direct a. verdict, the court cannot weigh the evidence without invading the province of the jury.
It is suggested that the horse may have frightened at some box cars which were shown to have been standing on the tracks of the Big Four Railway near the street. The evidence shows that the horse had passed these cars before taking fright; but, if it he conceded that the presence of the cars was a matter to be considered in determining the cause of the fright of the horse, still the jury, under the evidence, should have been permitted to decide whether such fright was caused by the cars or by the current of electricity.
There was some evidence of every essential element necessary to uphold a verdict in favor of appellee, and the case for that reason should have been submitted to a jury.
The trial court erred in overruling appellant’s mo