*1 Chicago York, New and St. Railroad Louis Company v. Henderson. 29,614. Rehearing Filed
[No. December January 15, denied 1958.] *4 Marion, DeVoss, Rauch, Batton, Smith Barker & Campbell, Decatur, Barker, & Irwin Macklin, of & counsel, Marsteller, of of Cleve- Frankfort, Clay and Ohio, appellant. land, for Smith,
Nieter & Maxwell Smith and Dan C. Flan- agan, Wayne, appellee. all Ft. for
Gerald G. Fuchs Jennings, and John H. both of Evansville, Amicus Curiae. petition J. This case to us on comes
Arterburn, Appellate §4-215, transfer from the Court under Burns’ Replacement. York, Chicago See New & Louis St. Co. R. opin Henderson 137 N. E. 2d for Appellate ion of the Court. injuries personal
It is an action to recover for al- leged have appellee been in a sustained collision by appellee between an automobile driven a and rail- operated appellant. Upon by jury road train trial a appellee $12,000 a for verdict the amount of re- was paragraph complaint upon turned. Ehetorical 15 of the the action was based amended to read as follows: “15. That to this unknown there was approaching crossing, then a train said street but give negligently any that defendant failed to ade- signal quate warning approaching or of said train gates guard- in that defendant failed cause the ing crossing closed, said street to be and failed ring light signal to devices a a cause bell to or flash crossing by at maintained said defendant carelessly negligently defendant and and ran said upon train from the east ing without its said train its tracks without blow- sounding whistle, horn, ringing bell, a a a giving signal or notice whatever of approach negligently carelessly and ran against plaintiff’s said auto-
mobile.” assigned overruling appellant's Errors include motion for directed verdict close of evidence overruling of a motion trial. new specifications in the for a motion new trial attack the verdict, sufficiency support of the evidence to *5 given by damages, and of certain instructions amount alleged errors, we be- of A number these the court. of the lieve, may disposed in the consideration of support the sufficiency the verdict. of evidence to appellee tends the The most favorable evidence ques following facts. The collision the to establish Anthony the intersection tion occurred City appellant’s in the and railroad Boulevard on November Wayne, about noon Indiana of Ft. just accident was prior to the Appellee reaching crossing. driving Before towards the south bridge about 300 feet crossing a steel the she traversed and continued long spans Maumee River which the crossing. railroad feet the further about 65 having crossing, passed the with appellee was familiar during each week the three two or times last over detained at she was the two-year At period. times crossing by approaching these occasions trains on crossing signals warning at the and from she heard gates always engine, down and flasher the and the were signals working. she At the time the accident as crossing, to the evidence favorable approached this the n verdictis sounded or warn- that no bell or whistle were signal given. ing kind As looked towards she gates up were crossing, she observed while She testified that were inactive. flashers bridge crossing left and as she she looked both ways appellant’s any ap- and did not down tracks see speed proaching train. At that time she slackened her driving per' 15 to 20 miles and she was about hour. gate, crossing, north As she entered was device, came operated an automatic down her appellant’s approached from car. and one trains east, and threw it end her'car struck front crossing against part gate, supporting the around injured. and as result she was She was taken to the hospital injuries. for treatment of her The evidence fingers broken, including shows three of her were ring finger right fracture her hand which at the time of the painful. trial stiff was still She could at the time of trial touch her thumb with finger. Appellee years her index old at the time years supported accident. For 29 had she her *6 family by working by cleaning, washing, in homes ironing doing work, laundry ten and and for the last years per approximately she had earned week. $80.00 any do work Since accident she has been unable to except her left with hand.
It summary will that be noted the above includes no showing directly facts what caused the of failure signaling gate operate automatic and devices properly. question This raises the as to whether or jury may negli- reasonably not the draw inferences gence from the failure operate of these devices to as they words, should. In other is the doctrine of res ipsa loquitur applicable?
Negligence, any condition, may other fact or be proved by evidence, circumstantial and it has been
urged nothing that there is distinctive about the ipsa loquitur, doctrine of res since involves merely permissible drawing of an inference negligence surrounding from certain facts. This no except permits doubt is true that the law the inference to be drawn under certain sets of facts ipsa loquitur. known reasoning as res The basis or origin least, principle, in its seemed to have been the defendant had exclusive control over the in- juring agency plaintiff normally and the had no access information its operation. about control Cooley (4th Ed.), 480, p. on Torts Sec. 369. Frequently applicable it is said the doctrine is negligence may thing (injuring inferred “where
instrumentality) to be under man- shown agement of the defendant or his servants and ordinary the accident is such as course things happen does not if those who have man- agement proper use care.” v. London St. Kath- Scott & Eng. p. erine Docks Co. 3 H. & C. Rep. 665, p. 667. leading case the rule res which established loquitur Byrne (1863), 2 H. & v. Boodle C. Eng. Reprint In this case the evidence
merely plaintiff showed was struck flour from a barrel which fell window above the street. Bar- ordinarily do not rels fall out some- windows unless negligent, court, one is decided and the court held prima made facie case. had out Since applied then the doctrine has been to train derailment eases, falling objects, surgical operations and dental resulting injuries, treatment in unusual and fail- ure of mechanical within the devices exclusive control *7 defendant, among the of various other of sets facts. complicated age As mechanical devices of our modern greater greater perfection achieve and upon reliance justified, them is it that follows the doctrine has a originally. application than broader Appellant attempts a to make in distinction cases ipsa loquitur res applies by where classifying those allegation cases in which there is an of “defective equipment” causing from cases those in there which is a mere failure of the defendant operate equipment. allega- such There is no direct equipment complaint. tion defective made in the Although a vast number cases involve defective devices, equipment reasoning and we fail follow fact, making In a limitation. appellant such operation history the doctrine does not and the No contention. device whatever was bear out a such a rolled out in the case barrel involved where flour causing injury; upper an and it is well window sponges applies to cases where settled that the doctrine following operations patients and left in have been like other situations. it appellant that the burden
The assumed contends offering going proof by with evidence forward inspec proper it maintained a had showed gate safety warn tion and and tests of mechanical crossing. testimony ing at' on the railroad devices made a few point this that these tests were hours afterwards, immediately the collision and before also proper operation in at the the devices were and that Accordingly, appellant' inspections. in time of these Caylor (1953), the rule set forth Worster sists applicable and that E. is 110 N. 2d ap testimony by the evidence offered such ipsa loquitur vanishes from pellant of res the doctrine examined case and are unable have this the case. We prin to that with reference approve said all following state law, particular, ciple ment : ipsa res noted that doctrine “It will be against party prevail where the loquitur does going might apply accepts duty of
whom with proof and the entire transaction. details presumption, or situation inference In such questions all concern- ceases exist doctrine ing injury must determined from the evi- by the unaided inference doctrine of dence loquitur.” Caylor Worster res Ind. 625, 632, 110 N. E. 2d departure case from the The rule stated
465 principle previously followed in this in the state fol lowing among cases Cleveland, others: etc. R. Co. v. Hadley (1907), 204, Ind. 40 App. 731, 170 Ind. 82 N. 1025, 13; E. Louisville, 84 E.N. The Albany New & Ry. Chicago Thompson, v.Co. (1886), Admr. 107 Ind. 442, 18, 357, 8 E.N. 9 N. E. 120; Rep. Am. The Cleveland, Columbus, Indianapolis Cincinnati and R. R. (1885), 264, Co. v. Newell 836, Ind. 3 N. E. 54 Am. Rep. 312; Kickels Fein App. v. 297;
10 N. E. 2d
v.Wass
Suter
App.
655,
from a rule of procedure. evidence to one of It would meaningless practical be of no value since explanation, defendant could offer thereby taking some forcing doctrine out of the case and accept explanation believe of a defendant whether or credible not. Under such a pro- rule of plaintiff’s placed cedure the case mercy at the of the defendant. importance are not unmindful
We and the de sirability principles of stable upon of law which liti
gants may rely, but where a rule announced in opinion injustice an obvious works liti- gants supported not by any authority find, it should we can be body eliminated from the (cid:127) jurisdiction.1 precedents of this 1. An examination the authorities cited in connection with above statement in the support Worster case fails such a principle. quotation Jur., Likewise the taken from 38 Am. p. 989, Negligence, §295, accurately quote represent does not or Sweeney Erving (1913), the 57 L. as stated law 228 U. S. however, Jur., Negligence, Ed. 33 S. Ct. 38 Am. say: loquitur §298, p. “Res 994 does creates an inference presumption negli constitutes evidence of disregarded by gence jury, sitting or court weighed jury, against is to be without a the but and considered as adduced the defendant in rebuttal thereof.” evidence *9 ipsa loquitur the inference rule of res Under true placed is negligence from facts drawn which is of weighed any and all ex- with be in scales to The infer- the defendant. planations offered or, negligence stated the as sometimes ence of when the defendant “presumption,” does not vanish contrary explanation but on forward with comes evi- with all other stays to be considered in case weight given to be fact. The by the dence triers evi- relationship all other to and inference its determining the facts. solely for those dence is giving permis- If to a we treat this doctrine as rise negligence may of drawn from sible inference be a certain set of as be done from circumstantial facts evidence, application no result confusion should its in a trial.
Appellant allegations claims as acts of negligence conjunctive jointly, are made and therefore, proof must all show acts
concurring. any support fail to find or rea- We fairly rule. It is well son for such a settled that multiple acts which caused the in- of same jury may paragraph complaint; be in one stated of recovery may upon proof any be had one of alleged dependent it such acts unless act to have proved with another not the ex- concurred and without the accident could not have of which occurred. istence practical pleading convenience, aAs matter require separate would seem to be unrealistic items alleged negligence each to have the same caused separately paragraphs set out numerous be amending a com- complaint. Rules with reference proof in- in most plaint would to conform with the result insisted applicable to avoid stances by appellant. (Spec. 88, §135, Sess.), p. Acts 1881 ch. 240; 1921, 115, §1, 72, §1, p. p. ch. ch. being §2-1068, Replacement; Burns’ 1946 Lowe’s Prac., I, §13.66, p. 488. Vol. Works following statement: Gavit makes recognized proper “It has been also that a allegations plaintiff may make cumulative as to the pleading paragraph same cause of action in one allegations repugnant where the are incon- neg- example The most cases where it sistent. ligence common is in the recognized plaintiff may tions allega- specific make number *10 negli- toas what constituted the defendant’s gent accepted conduct. The a rule has been that complaint demurrer to a should be overruled such any specific allegation Gavit, if is sufficient.” I Pleading Practice, §133, p. Indiana involving allegation There are cases the of several alleged breaches of a bond contract de or or several famatory statements, accepted in which the court has allegation regarded the common law rule and each although separate paragraph. a claim contained in one Expositions Terry (1945), 116 Johnnie J. Jones Ind. 189, App. 159; 63 E.N. 2d Knickerbocker Ice v.Co. Gray (1908), 395, 341; Ind. 84 N. E. Pittsburgh, Lightheiser etc. R. Co. 163 Ind. 78 N. E. The State ex rel. et Sidener v. White al. Ind. 587. argues
Appellant allegations specific further if negligence complaint, recovery are made in a under principles ipsa loquitur the of res is excluded. allegations complaint specific in the are not signal gate why did not as to the devices and alleges properly operate. generally It that “the defend- gates guarding failed cause the ant to said street cross- ing ring,” to to cause a bell be failed etc. closed general allegations point are and do out
These not causing the or failure which is facts defect detailed knowledge appellant Railroad Com- within pany. in their Treatise
However, Harper and
recent
James
following
analysis
clear
make
the Law
Torts
point:
this
plaintiff
occasionally
that a
held
been
“It has
negligence thereby
specific items
pleads
who.
ipsa
benefit of res
from the
precludes himself
though
a case
proof makes out
loquitur
even
given
apply. The
otherwise
reason
where would
for
he has
such a
shows
is that
rule
not
in need of
facts and therefore
access
a doctrine
designed
plaintiffs
who lack
aid
generally repudiated and is
rule is
Such
access.
altogether
indefensible.
urged
sure)
fairly
may (to
be
“It
be
application of
lay a
pleadings
basis for
must
given case,
any
but
this rule of
doctrine in
in accordance with
should be administered
fairness
pleading
principles of modern
the liberal
according
Thus,
have
rule of thumb.
as we
n
loquitur
seen,
res
case
proof
in a
seldom
single
Typ-
specific act or omission.
points to a
points
explanations
ically, it
alternative
to several
involving
(e.g., negligence
in construc-
indicating
maintenance,
tion,
which of them
operation)
without
probable
more
than the other.
required
pleadings
well
In
such
case
*11
give
explanations,
to
.
so
to cover the alternative
fair
case
as
adversary
the
scope
the
notice to the
of
of
In practice
usually
he
meet.
this
has to
is not
requirement
very
and can
onerous
be met either
by
generality
allegations,
by listing
of
broad
or
all
specific
proof
acts or
the
omissions
which the
combining
by
general
point,
specific
with
may
allegations.
pleadings
if
even
fall
And
short
respect,
free use
amendment
this
allowed and the
of
should be
pleadings-
treated
amended
proof
where defendant’s
has been
all
directed .to
explanations
may
the claimed
so that the matter
litigated by
Only treated as
consent.
a case where'
beep genuinely
justifiably
defendant
has
mis-
actually
pleadings
led
so that he
failed
has
prepare
on
defense
a case based
the doc-
application
trine should its
be denied
the basis
pleadings.” Harper
James, Torts,
of the
Vol.
2,
ing
1096, 1097; Gavit,
§19.10, pp.
Indiana Plead-
Practice,
(e), p.
&
Sec.
679.
pleader may
In some cases the
be uncertain as to
trial,
develop
what
at the
details will
from
evidence
particularly from the
mouths
adverse
witnesses.
specifically
proximate
evidence
show
cause
again nothing may
and then
be shown
from the
aside
negligence
from
basic facts
which the inference of
ipsa loquitur. Baltimore,,
arises under res
etc. R. Co. Hill,
App. 354,
Admr.
Since the doctrine of res is to some ex theory, tent based that the facts connected with the cause are unknown to the plaintiff and peculiar knowledge within the gen- the defendant it would also follow from the pleading eral rules of that in plaintiff such cases the allege compelled specific, coming not facts within knowledge special of the defendant. Lowe’s Works Prac., I, §12.17, p. Vol. argued regardless allegations It is next complaint spe- if the offers evidence of negligence cific loquitur acts of will exclude res necessarily from the case. Such true since speak course, facts still for themselves. Of if the un- very contradicted evidence excludes its nature inference part defendant, on the proof such as intervening “an act God” or an agency over which the defendant had no control caused injury, liability. there would be no Leet v. Union Pac. R. R. Co. 25 Cal. 2d 155 P. 2d *12 470 1986, 1008, 866, L. Ed. den. 89 L. U. S.
A. R. Cert. 1403; Gray R. v. Baltimore & O. Co. 65 S. Ct. a L. 461. But such 2d 59 A. R. situation Fed. rare, be plaintiff would in a trial would be since Jur., Negligence, 38 Am. proving himself out court. James, Torts, §299, p. Harper Vol. & Law of 1098; Prosser, (2d Ed.) (1955), §19.10, p. Law Torts pp. 211 and 214. why may in a
There is no reason law tending to show may available evidence as offer such rely specifically and still the items permitted under res upon the inference also in- loquitur. of different causes or A number the final left determination ferences be thus n of the facts. the triers with the evidence shows Appellant contends that guilty of contribu appellee was out contradiction that tory negligence approached the railroad as she looking crossing, failing use due care in listening. In connection reference this is driving person requiring a a vehicle to the statute made less 10 feet stop but not than 50 feet within crossing when: tracks railroad before clearly “(a) A visible electric or mechanical signal warning ap- gives of the immediate device proach of a train. gate crossing a “(b) A is lowered or when flagman gives give signal continues to human or approach passage of a train. or train, act, “(c) A railroad as defined approaching approximately one within thousand crossing [1,500] highway hundred feet of a five signal emits audible for such distance and such nearness to such train, by speed of its reason crossing, is an immediate hazard. “ (d) approaching plainly An train visible and crossing.” proximity hazardous such Acts 48, §100, 289, being §47-2114, p. ch. Burns’ Replacement. all these con The evidence here was in conflict on *13 ditions, including bridge or not the obstructed whether crossing. appellee’s the approach view of the to the This making question ap left the as to the facts the statute plicable jury. 1939, 38, 289, §100, p. for the ch. Acts being §47-2114, Replacement; Burns’ 1952 Dommer v. Pennsylvania (1946) (C. Cir.), R. Co. A. 7th C. 716; York, First,
Fed. 2d
New
R.
etc.
Co. v.
etc. Sav
ings
(1926),
Bank
E.
Ind.
153 N.
Pearson
(1953),
v. Baltimore &
R.
Ohio Co.
200 Fed. 2d 569.
Judge Swaim, speaking
court,
Bartley
for this
said in
Chicago
page
& E. I. R. Co.
522,
pany approaching
give
Heidelbach Avenue would
required
signals
the
statutory
whistle,
and
bell
warning him and other travelers on Heidelbach
approach
Avenue of
train, §55-1243,
the
of such
1933, §14557,
Burns’
1934. The
Baldwins’
failure
Railway
give
of the
only
Company
signals
such
negligence per
part
se
Railway
on the
of the
Company, but
jury may
is a fact
prop-
which the
erly consider, together
pertinent
facts,
with other
determining
question
the
appellant
of whether
guilty
contributory
ap-
as he
proached
crossing
prior
said
to the time he
saw
approaching
or could have seen the
train.”
Judge Achor
principles
reiterated these same
while
on the bench
Appellate
of the
Court of this
State
Gillies
next Friend
v. N. Y. RC. R. Co.
App.
In argued this connection it is that if there exists a question contributory negligence for the to de- termine, such possibility a contributory negligence ipsa loquitur,
would because exclude the doctrine res injuring principle, instrument must under that the defendant, no with under the exclusive control contribute, opportunity plaintiff’s conduct cooperate influence, which caused factors with authority injury. for such can find no sound We principle. It the doctrine is true limitation on causing generally operative the factors where stated knowledge of the are within the control statement, frequently in de- made This so defendant. fining doctrine, merely appears to rest principle sometimes stated rationalization of the normally namely, plaintiff if has way, another no information details about access thing operation which caused and control obligated attempt injury, is not then *14 alleged plead prove the of the exact details of permits improper operation. failure The law then negligence. drawing the an of defendant’s of inference an The mere fact of collision between automobile a more, crossing, a raises and a at without train railroad negligence part the of no inference of However, it parties where is the involved. of gate signalling safety a that devices or shown ipsa crossing operate, of the did not the doctrine res jury loquitur applicable to the extent is negligence by permissible inference of reason draw a operate properly failure of such devices Rail- of the were the exclusive care control under noted, however, Company. It road should drawing in itself not fix of such inference does accident, jury still proximate of the but the must cause cause, though per- proximate even such determine negligence drawn. The doctrine inference of missible is proxi- ipsa loquitur a rule which fixes the of res is injury, mate only cause of an but a rule of evidence allowing permissible negligence inference of under a Railway certain set of Hunt Vermont facts v. Central Co. Am. Conn. Atl. Jur. Negligence, §298, p. 994. taking
There permissible more no reason for ipsa loquitur inference under res out aof case because contributory negligence presented evidence of than any explanation, there is because evidence of or of in- spection, given by care and maintenance is the defend- unduly contrary conception ant. Such a would restrict fact-finding jury. duties of a negligence possible contributory The existence of not eliminate from the case res does loquitur properly applicable, where otherwise jury drawing privilege nor take from the negligence The inference under such facts. negligence possibility contributory does not alter signals gates, safety fact that the flasher bells de were under the of the Railroad exclusive control knowledge appellee to the and the no fendant has operate. Pittsburgh, cause of their failure to See: etc. Boughton (1924), R. App. Co. 142 N. E. appellant purpose The offered evidence for the proving contributory appellee failing to look and listen and use due caution at the crossing. right had railroad to consider weigh along permissible this evidence and with *15 negligence by surrounding inference of raised the cir- ipsa loquitur. reject cumstances under res It could permissible negligence either the inference of to be surrounding reject from drawn the or circumstances by appellant the evidence offered to establish contributory negligence plain-' negligence sole or may jury, we rendered tiff. From verdict in appellant assume that the evidence offered negligence contributory attempt to establish the appellee, satisfy jury, permissible while did not the auto- from the failure of inference of signaling operate, under matic to which was device Company, ac- was appellant control of the" Railroad cepted for its verdict. Jesionowski and relied 452, 67 S. 329 U. Boston Maine Railroad S. & Prosser, Torts 416, Ed. A. L. R. L. Ct. (2nd §42, p. Ed.), 209. neg
Appellant guilty it is not also contends ligence by of the failure to sound a whistle on reason of an ordinance of the
the locomotive because Wayne, City as follows: of Fort reads Blowing “Sec. Whistle. running any person It controlling any shall be unlawful to sound the whistle locomotive or allow the same be sounded within
thereof
corporate
city,
prevent
ac-
limits
unless
cidents that cannot otherwise be arrested.”
question
presented
same
raised has been
adversely
appellant’s
case
decided
contention
Savings, etc. Co.
Chicago,
etc. R.
v. Lake Co.
Co.
475 129, App. 869, 81 Ind. approved by 142 N. E. and there Appellate Court. v. 119 Ind. Wass Suter App. 655, 84 Cleveland, N. E. 2d etc. R. Co. Hadley 204, 731, App. 170 Ind. Ind. N. E. (N. S.) 84 N. E. 16 L. R. A.
Objection by is made to Instruction No. tendered given appellee court, by in which the charged fixing damages, to “take (appellee’s) time,
into consideration her loss pain, suffering, anguish her her mental and dis- tress, permanent injuries any you her if find to exist.” Appellant’s objection upon the is based claim that there anguish. no is evidence of mental There was no ob- jection ground damages made on the that such were alleged allegations or in issue under the might complaint. Any appellant contention make on point is waived and need not or de- we consider point. Chicago, cide that The case of etc. R. Co. Blankenship (1926), App. 332, E. 44 N. by appellant, point cited turns mental anguish alleged special damages. was not We cannot as approval. find that it has ever been cited with per- “It is well established that actions injuries damages may sonal compensation the recoverable include suffering by for mental caused such injuries accompanies and follows or them proximate consequence wrongful defendant’s given act. A reason for the rule is that the mind part body, body is a includes and an to the whole, separable. and its are not effects suffering merely In such cases the mental aggravation damages naturally when it ensues complained from Damages, the act of.” 15 Am. Jur. 176, pp. Sec. 593-4. long It has been the law in this that the state triers facts physical suffering infer mental and personal in- naturally flow from
which would ago years Nearly jury proved. a hundred (1868), 21 said, v. Vanderkleed court in Cox 164: complained of as follows: “The instruction assessing damages in- you may ‘In consider given juries inflicted on the blow incurred, defendant, expenses loss *17 hearing, peace indi- time and of mind and also his by happiness received.’ vidual This instruction is sustained occasioned by Taber the case of Hutson, 322, to be 5 Ind. and it seems to us principle.” in correct approval a number This case has been cited with following times, one of citations makes statement: personal that dis “It is well settled Indiana resulting negligent
figurement deformity, or from injury, proper considered in is a element estimating damages, of sequences elements 48 Ind. ‘anxiety and such distress and. reasonably mind, fairly injury complained plain con as are and proper of’ are damage.” (1911), Harrod v. Bisson App. 549, E. 1093. 93 N. General, Corp. (1926), 198 etc. In Car v. Melville 890, 529, 540, p. 145 E. we said: N. leg plaintiff’s “There was evidence that was that he was left street, lying in the crushed off and left otherwise severely injured, pain in that he suffered leg legs, right his head and fleshy that his was not so right accident and his after as before the pained him at ankle had become crooked and still swollen, trial, still that the time of the and was weeks, hospital that he had not he was in the worked four injury, any and evidence of other since evidence was sufficient similar facts. This might justify jury that the consider an instruction suffering, physical pain and mental and both the injuries any, from his had endured if
477' future, all, or by endure in if would caused arising injury.” physical out his right experience The has the. to use human determining anguish, suffering anxiety and other physical (if
both a mental there is dif ferentiation) naturally phys flows from disfigurement injury, resulting incapacity ical person. proof may caused be made Such either direct or circumstantial evidence. It be inferred injury, age, from the appellant’s nature of the her necessity employment resulting for her appearance public incapacities injury. and the caused There was Restatement, no error in the 2 instruction. §456; Damages, Torts §88, p. 316; McCormick on (1902), 286, Harness v. Steele 875; E.N. Chicago Heddles (1890), & Northwestern R. Co. 228, 77 Wis. Angeles N. W. v. Los Merrill Gas 499, & Electric Co. 158 Cal. 111 Pac.
Am, Rep. (N. S.) 559; L. St. 31 R. A. K.M. & T. Ry. App. Co. v. Miller. 25 Tex. Civ.
S. W. 978.
We have objec- examined the other instructions made appellant tions thereto the and we find none objections specific the made sufficiently are to war- appeal. rant their Appellant contends, consideration on however, although objections the they .that at the time specific were made not as have been as set forth argument in the brief, section of its still the court grant liberality should some and latitude in its con- sideration of them because under the stress and strain limitations, of trial and the time such instructions could given not study necessary discovering the for the claimed errors.
Erroneous instructions constitute reversible error If
only they learned when have influenced verdict. promptly perceive not able to counsel are alleged are the time the error at instructions likely given jury, it not that to is thereby. sufficiently them to be affected would notice Courts, lawyers, prone are well as the often too in in- connection with over-emphasize the semantics shadings slight result, the mean- structions, and as exaggerated ing are far of an instruction or context jury. they may beyond have had the influence purposes requiring an ob that main One given to jection made before it is an instruction be give opportunity jury, the trial is to court any error if exists. If is to correct alleged specifically, promptly error done objections appeal. as made to on The is waived enough specific were not referred above instructions or alteration point trial court correction out to the if the error existed. therein remaining the verdict contention is The sole In of the evidence $12,000 view excessive. ap- injuries incapacitating the which shows necessary support of pellee from work girls herself, and two her invalid husband say family, excessive. we cannot sum judgment of the trial court affirmed. separate opinion. Emmert, J., concurs with C. J., Bobbitt, opinion. with dissents Landis, JJ., concur. Achor and Opinion
Concurring Indiana cases res C. J. The Emmert, given loquitur generally support the definition Pitts burgh, Arnott, R. etc. Co. v. Admx. *19 13,
350, 368, is as 126 E. which follows: N.
479
that, when the instrumentali-
“It is well settled
ex-
under the
produce an accident are
ties which
servants,
charge
his
of the defendant or
clusive
and when the
occur in
does not
accident
such as
is
charge
ordinary
if those
course
events
care, proof
is sufficient
proper
of the accident
use
negligence,
prima
create a
case of
facie
by
to show
prevail
it met
evidence
will
unless
by
not
been avoided
that
the accident could
have
part of the defendant.”
due care on the
593, 599,
(1914),
Ind.
182
See Prest-O-Lite Co. Skeel
v.
365;
(1949),
Ind.
600,
119
106 N. E.
Wass v. Suter
655, 659,
It
a rule of evidence.
Corp.
41, 44,
E. 2d
(1951),
App.
N.
122 Ind.
100
655,
E.
(1949),
App.
84 N.
2d
119
Wass
Suter
734, supra.
dispense
rule that he
It
not
with the
does
alleges negligence
prove
pre
by a fair
must
who
(1937), 104
Kickels v. Fein
ponderance of the evidence.
generally
“This
has been
defined to mean that
1.
doctrine
thing
which caused the
to the
when
management
his
of the
or
under
the control
defendant
ordinary
servants,
and the occurrence was such that
things
happen
control
not
if those who had its
course of
would
management
proper care,
reasonable
that
this affords
and
evidence,
use
defendant,
explanation by
that
the absence
care;
injury
that under
want of
from or was caused
the defendant’s
arose
prima
facie case
such circumstances there is
989, §295;
negligence.
1193, §768;
Am. Jur.
Union
45
J.
38
C.
514, 530,
Berry,
(1919),
Admr.
188 Ind.
Indiana v.
Trac. Co. of
1171; City
737,
655,
Decatur v.
32 A. R.
124 N. E.
L.
N. E.
205, 218,
Eady,
v.
(1917),
I Caylor (1953), believe Worster correctly N. E. 2d facts, decided and it should not be overruled. There the part testimony case in chief introduced the *21 surgeon performed defendant operation. who plaintiff The proving undertook the burden of all the facts of the necessity there was no so to invoke loquitur. rule of plaintiff The res offered evi prove dence to happened by what the witness who knew more happened anyone about what than else. plaintiff When the made the defendant his own witness testify and him had operation, full about he say cannot duty coming then be heard to forward upon with the evidence rested the defendant. fact, In there no was evidence left to come forward with. It matters not that the defendant doctor was a plaintiff hostile witness. The present did not have to witness, him as his and then he would have been en By overruling titled to the benefit of the rule. Worster Caylor, supra, gets impossible this court itself in the position holding plaintiff that a can introduce as his all anything witnesses those who know about what may have caused the accident so that there no evi dence left for the defendant with, come forward yet and the defendant duty would still have the coming explain forward with evidence to the accident. Caylor, supra, The rule in Worster was sound logic not be over- principle, precedent and should prin- rule still exists for the ruled when the reason for a rule cease ciple. that when the reasons It is true cease, or when there never the rule should was exist cease, place it in the first should reason for the rule Caylor, supra, kind of a case. is not that Worster v. but ipsa loquitur cannot why the rule res I fail to see crossing where in a railroad collision invoked signals gates are of automatic non-operation negligence. charged They the ex are under as acts of company, the Indiana of the railroad control clusive operation they to warn are not in that where rule is jury may inference non- travelers, draw implied to the traveler operation invitation was York v. New Cent. tracks. Gillies cross the railroad E. 2d App. Ind. 116 N. R. Co. N. R. v. Revlett Louisville & Co. traveling generally relies public E. The
65 N. 2d 731. signal as an in non-operation automatic of an on the jury proper It the tracks. vitation cross signals non-operation into con of such to take the determining whether or not sideration negligence. contributory guilty of had been contributory that no has determined on this issue. proved defendant burden and the had present no reasonable a case where This record does *22 contributory free from was man could find negligence. 47-2114, Replacement, which is Burns’
Section High- Regulating Traffic on Uniform Act §100 draftsmanship example poor in a ways, another is regulates the conduct of an automo- It act. uniform crossing grade. For ex- at driver at a railroad bile stop a driver cannot happens that his ample, it often crossing, due to the fact feet from the within 50 car stopped him, other ears front but the word- have ing stop feet of the statute he shall within 50 crossing. says proceed he until The section shall not crossing safely do situations he can so under various subsections, in four not stated enumerated which are disjunctively conjunctively. Clearly or “or” word should have been the at the end of subsections last word (a), (b) (c). it But I do not was the believe legislative expressed prohibit intention to a traveler proceeding only fell from when the factual situation applies (b) within all subsections. Subsection crossing gate crossing a there a human where is a or flagman. crossings having sig- Many automatic flasher gates flagman. crossing a nals do not have human give conjunctive all Yet if we a construction subsections, prohibited the traveler from would crossing approaching, when a train and the red signals operating, simply automatic flasher because no warning. flagman giving gate was down or no human The of the entire section is reasonable construction driving stop not a motor vehicle traveler should crossing grade, than 10 feet from railroad less safely proceed do when fac- and not until he can so by any of the four presented covered tual situation is subsections. general in- effect of erroneous rule on the an clearly court in American stated
struction was Employers’ v. Cornell Ins. Co.
569, 570, 2d follows: 76 N. E. prejudice from er- that “. . . It is true presumed unless con- roneous instruction trary considering affirmatively appears court as- instruction this of an erroneous effect unless the result the error influenced sumes evidence, interrogatories, appears from the verdict part the record or some other *23 484 proper under been dif- instructions could not have Probst, Spitznagle (1939), ferent. 215 Ind. Receiver v. 402, 408, 263; (2d) City 19 N. E. Eady (1917), 205, 217,
Decatur v. 186 Ind. 115 N. E. 577.”2 However, general exception to this an rule there is general damages where a instruction enumerates thereof, questioned various items and item is fol by lowed any.” the words “if In such case we have jury held the must have understood such item should not be considered proof unless there was some such Operating loss. (1953), Lincoln Co. v. Gillis 232 Ind. 551, 560, 873; 114 E. (1951), N. 2d McClure v. Miller 422, 428, 229 Ind. 98 2d appellant’s N. E. 498. Even if appellee’s requested contention that 2 instruction No. unsupported by any was anguish, evidence of mental it reversible error it since was limited providing any you “if find exist.” But mental anguish suffering and mental naturally proximately from flow are not fictitious imaginary. damages Such elements should not be denied provide the law which remedy seeks for wrong. agree every I majority opinion with the properly compensation could award for anguish “mental and distress.” Judge I opinion concur with Arterburn’s toas other error, judgment. contentions vote affirm the 2. “Our books are full of cases which hold that instructions pertinent evidence, should be relevant to the issues and to the given concerning if an instruction is a fact or set facts adduced, which no evidence has been it will be reversible error clearly appears party unless affected was not harmed thereby. only following: Cleveland, etc., cite R. We Co. v. (1910), 238; Chicago Case 174 Ind. 91 N. E. & Eastern Ry. Whipking (1933), App. 167, Illinois Co. v. 96 Ind. 170 N. E. 548; Bachus, App. 603, Admx. v. Ronnebaum 98 Ind. 186 Simpson (1942), E. see also Loeser v. N. N. Hayes Freight E. 2d 945.” Lines v. Oestricher 143, 147, App. E. 2d 612. N.
' Dissenting Opinion majority opinion from the J. I dissent Bobbitt, *24 following the reasons: grounds it is
First: As one the for transfer as Appellate opinion serted that the contra the Court ruling precedent venes a of this in court Worster 337, Caylor (1953), 231 Ind. 110 N. E. 2d on the question ipsa loquitur, appellant herein res because allegedly was done did not “detail all the facts” as that case. (appellant)
In the the called Worster Case performed (the opera- the defendant who doctor tion) (appellant’s) his witness and as such he as fully and without all the facts detailed reservation including concerning per- operation the accidental — negligence foration of bowel which was the charged there, correctly complaint. held in the We and so, “presumption or that under such circumstances ipsa loquitur disappeared from the inference of res case.” general page
At rule 632 of 231 Ind. we stated the as follows: “ ‘ of the. occurrence “Where the circumstances
that has caused the are of a character give ground care had been inference that if due for reasonable charged employed by party cape thing premises, happened with in the negligence may happened,” would amiss not have explana fairly any be inferred the absence (Our Jur., Negligence, emphasis.) tion.’ 38 Am. §295, pp. 989, Sweeney Erving (1913), 233, 238, L. Ed. U. S. 33 S. Ct. 818.” seeking party apply In the Worster Case the proof fully doctrine went forward with the de- It seems the accident. tailed the facts which caused beyond dispute a circumstance that under such evident negligence be- place inference of was no there ex- alleged negligent act was described cause by evidence. plained plaintiff’s own direct detail opera- calling performed the By the defendant who arose, alleged negligent act tion out of particular plaintiff-Worster act was able show the injury, allegedly caused the -doing had, or he the circumstance which removed so ipsa loquitur. might have, invoked the doctrine res removed, then for the rule was When reason Judge followed, ipsa loquitur Gilkison said: “res disappeared from the case.” prima operation of case which the the rule facie explana- had established was overthrown detailed *25 occurred, injury for- tion of the and from then how plaintiff’s depended upon factual ward the case together presented by situation all evidence with might there- inferences which be drawn reasonable which, from, by any conclusion absence unaided evidence, per- explanation or rebuttal was injured the fact of the intestine. mitted draw from merely ipsa loquitur is a rule of The doctrine res Negligence, §298, Jur., p. 994. evidence. 38 Am. application the doctrine is based on special “The theory under the circumstances which that plaintiff operation, the is unable show invoke its particular act of the injury which caused posi is in a better that the defendant App. do Wass v. Suter 119 Ind. tion to so.” 655, 661, E. 84 N. 2d 734. loquitur ipsa Appellate defined Court has res Suter, supra, page App., at 659 of 119 Ind. v. Wass as follows: “This doctrine generally been has defined to thing mean when the injury which caused the plaintiff to the manage- was under the control and servants, ment of the defendant or his and the oc- ' currence ordinary was such that in the course of things happen would not if those who had its management proper care, control and use that this evidence, affords reasonable in the absence of ex- planation by defendant, injury arose from or care; by caused defendant’s want of that under such circumstances there is a
prima negligence.” Citing facie case authorities. There seems to me no to be serious conflict between the above by and that statement made this court Caylor, supra (1958), Worster page 110 N. E. 2d as follows: “It ipsa will be noted that the doctrine res loquitur prevail party against does where the might apply whom accepts duty going proof with the and details the entire transaction. In such a presumption, situation the inference or doctrine ceases questions and all exist concern- ing must be determined from the evi- dence unaided the inference or doctrine of res ipsa loquitur.’’ When a factual situation such as that described exist, rule is loquitur shown to permits, res compel, but does not the trier of the facts draw a might conclusion which natural reason draw from the proven. ipsa loquitur facts Res evidentiary doc- designed trine to enable the to establish a case jury’s consideration, for the where he no has means of negligence. proving specific acts of *26 plaintiff, by evidence, If his has established all the necessary elements ipsa invoke the doctrine of res loquitur, and thereafter neither nor defendant explanation offers detailed hap- of how the accident pened, plaintiff thereby prima the establishes a facie
488 of the case to be decided the trier facts on basis may not, plaintiff, with- may, for the which it find negligent if the arty specific act. But proof out going directly by for- plaintiff’s case defendant attacks explanation of the causes with a detailed ward longer infer accident, jury may no then the accident, happening the mere basis determining all the evidence must consider but negligent. or not defendant whether designed the situa- ipsa loquitur to meet is res Since negligent specific conduct evidence of tion where' no specific, introduced, once such it follows that been has applying produced is the reason for detailed evidence longer Therefore, may prop- no exists. it doctrine . that, . infer- erly “In such a situation . said be . .” ceases to exist . . This means doctrine ence of must consider the the trier of the facts simply and cannot introduced specific evidence when detailed for the ignore merely it have found it could because through application doctrine res plaintiff, been intro- loquitur, had if detailed evidence no such by a de- prima case overthrown duced. With facie defendant, explanation by then for tailed alleged proximate cause of determine all the all the as shown evidence. from facts in Indiana that in order for also well settled It. appear apply it made doctrine to must causing were the accident under all instrumentalities management of the defendant. control arid the exclusive supra Caylor, (1958), 231 Ind. Worster v. 337; Indiana Harbor Belt R. E. 2d Jones N. Co. 139, 148, 361; Pittsburgh, 41 N. E. (1942), Ind. 2d Arnott, 350, 368, Admx. etc. R. v.Co. Co. E. Prest-O-Lite Skeel N.
489 593, 599, 474; 106 N. E. Ann. Cases 1917A Wass Suter, v. supra (1950), App. 655, E. 2d 119 Ind. 84 N. 734; 606, 617, (1938), App. Kickels 104 Fein 297; Pittsburgh, 10 N. E. 2d etc. R. Co. v. Hoffman (1914), App. 431, 57 Ind. 107 E. Hook N. Cir., National Brick 184. Co. 150 F. 2d necessary An examination the essential elements ipsa loquitur to invoke doctrine of res me leads apply conclusion that does not in this case for following reasons: (1) specific allegation negligence— There is a “that negligently give any adequate defendant failed to warning signal approaching or of said train gates guarding defendant failed to cause the said street crossing closed, ring failed to and cause a bell to signal light a to flash devices maintained at said crossing by carelessly defendant defendant and and negligently upon ran said train from east its tracks blowing whistle, sounding without a horn, ringing a bell, giving any signal or without or notice whatever approach negligently of its carelessly and and ran said against plaintiff’s train and said automobile.” York, Chicago New & St. R. Louis Co. v. Henderson (Ind. App., 1956), E. 2d N. 745. is, however, general allegation negli-
There no gence complaint in the In herein. such situation an submitting ipsa loquitur instruction a doctrine of res York, error. New is reversible etc. R. King Co. v. App. 510, 514, E.N. alleged negligence Here the acts of specifically are complaint. pointed specific out in the act which complains plaintiff-appellee gates failure signals why they to work and not failed to work. plaintiff-appellee knew Here and. to, was able alleged did, specific point acts detail and out injury, since which caused her she them, them. The defendant- knew able to show she was position to than was appellant better do so no plain plaintiff-appellee, and under these circumstances them, required them, prove “with or some of tiff was flows from the . . out the aid of . [inference] *28 loquitur.” ipsa, the of res application doctrine supra (1926), 85 Ind. York, King, R. New etc. Co. v. 508; 510, 515, Baltimore, App. 154 N. E. etc. R. Cf: App. 354, 372, Hill, (1926), 84 Ind. v. Admr. 148 Co. 489, E.N. 495. thing
(2) injury caused the here The which was engine appellee’s automobile. collision the train with charged appellee appellant certain were with Both degrees duty to which The avoid the collision care. alleged appellant herein rested caused weight. equal Pittsburgh, etc. R. appellee with Co. 431, supra (1914), App. 446, Ind. Hoffman, 57 107 v. E. 315. N.
Only which one the instrumentalities caused the alleged injury in the exclusive control of herein was exclusively in control automobile appellant. The was appellee. applicable The here is stated Cadwallader rule Chicago Railway Louisville, Albany and Co. New page E. as (1891), Ind. at 27 N. follows: “Assuming that appellant this case had
- right presume approach- train that no was flagman give ing, notice, yet the failure reason of not excuse her from use of did hearing sight in order her ascer- senses of these With use tain the fact herself. well able to ascertain whether she was as senses flagman approaching as the a train was crossing, negligence.” and a failure to use them was Cleveland, etc. See also: R. Co. v. Heine 163, 167, App. N. E. Pitcairn 428, 439, App. Honn 32 N. E. 2d presume appellant We cannot that if had here happened. used due care the accident would not have say The accident here is not such that can “in the we ordinary things happened” course of not have would things charged appellant if had done the with it is failing presume appellee to do. Neither can we crossing would not have driven her automobile onto signals flashing gates working if had been and the knowledge people properly. It is common have things. done such here different from the case of facts are falling out of There barrel
barrel the window.1 There in the of the defendant. exclusive control it is conclusive that if the barrel had not fallen there would have been accident. That no cannot be said about appellee the case at bar. It has been said was in ex- *29 entirely pos- clusive control of the automobile. It is sible, ample and there is evidence in the record to so show, negligence failing that her degree in to use the required of care of her under the may circumstances only injury, have contributed to her but even proximate have been cause therefor. majority opinion
It is stated in the that Instruction given “practically No. 6 was verbatim” Pittsburgh, in Boughton (1924), etc. R. Co. 81 App. 129, Ind. However, N. E. 869. in facts that case are so dif ferent from the factual situation in it, this case that Byrne Eng. v. Boadle 2 H. & C. Re print 299. authority my for opinion, considered cannot be
giving 6 in case. No.. Instruction foregoing trial I that reasons
For the believe giving appellee’s error court committed reversible Instruction No. 6. evidence in this case There is sufficient
Second: appellee. contributory part on the show bridge appellee 65 feet from cross- left the When ing, plainly in view 130- feet from train was bridge, crossing and, the train visible from with proposition escape that it was from the there is no bridge. she was on her at all times while visible and, testimony, in her Appellee that she looked testified until she to the did not look was almost stated she she that she could have Appellee further testified track. there, did not but she if it had been see the train seen train, that, if she had seen the testified it. further She stopped admits that did not she have could she crossing. approach to the her No- stop time in testify testimony appellee did ever in her where for a train. she listened crossings that railroad are in settled “It is well warning danger, persons a all themselves approaching the must exercise reasonable same and, they protection if own fail to care do so and their injured, thereby they are will be deemed negligence; contributory
guilty travelers attempting highway, pass upon a railroad public over crossing, attentively look must and listen and, traveler, approach if a for the trains care, exercise of reasonable could have seen the looking approach of a train in time to have injury, by efforts, the use of reasonable avoided injured by presumed, it lision if he did in case he is will col therewith, look, or, that he either did not look, saw; that he did not heed what he York, Leopold, New etc. R. . . . .” Co. Admr. App. 309, 315, E. 298. 127 N. See
493 Waking Cincinnati, (1920), also: R. etc. Co. 401, 799; Chesapeake App. Ind. 125 N. E. & Ohio Ry. 224, App. 220, Co. v. Patchett Village 184 N. E. Briske v. Burnham 976, Ill. 39 N. E. 2d ipsa Since I have concluded the doctrine of res loquitur bar, apply in the I does not case at see no effect, any, to discuss if of con- reason further tributory operation doctrine. Regardless might eventually Third: we of how de- question case, loquitur, my cide the res opinion, giving ap- must reversed because of the pellee’s question pain, Instruction 2No. on the suf- fering anguish. and mental
It is fundamental that a cannot recover on proof. matters which there is no True, majority opinion says, jury may as the suffering physical infer mental and which would nat- urally personal flow from a but such must be alleged proved. allega- In this case there is neither of, of, anguish. proof Judge tion nor mental As Crum- packer Appellate opinion, in the said Court’s “mental 'anguish, any damages, like other element of recoverable proven.” must be support
Inferences be drawn to evidence anguish, they supply mental but cannot evidence which entirely missing from the record. question presented Chicago, here was settled in Blankenship (1926), App. 332, etc. R. Co. at 44, 46, page 154 N. E. as follows: o,f allegation no complaint “There is anguish’ being consequent ‘mental suffered as upon account of such injury, damages said and no were asked on element, yet court, request appellee, in Instruction No. told if it found plaintiff, for the in as- *31 sessing damages, compen- and it allow his should pain only physical and sate him not suffering for endured, for that he but had also which future, if such endure he which pain but would evidence, by suffering were shown and damages on him ac- that it allow to should anguish resulting phys- his of ‘mental from count injuries he will in the future.’ It ical follows that that sustain was, as to the the above instruction erroneous, anguish,’ and element ‘mental way by of as can which we determine have no we the instruction, jury and not follow the above did presumption is that it did said instruc- follow tion, compensation include in its verdict for verdict, anguish, to that extent such mental least, including excessive, as must deemed damages not for an element within issues.” opinion, it, up majority I read would set a as anguish only upset proving rule mental and not new on Appellate which precedents of this and have Court many years, unre- for would leave the stood but experience own outside for strained draw their damages grant authority in such unlimited cases damages being pleaded element either without such proven. just opinion Appellate I think the reached Court’s record, in the and correct result under the evidence deny I transfer. would Rehearing Petition for On appellant petition has for J. The filed a Arterburn, rehearing it it feels have com- states we duty plied specifically disposing with our objections appellee’s appellant’s question raised Instruction No. 4. stated; opinion we
In our “Appellant guilty also contends is not negligence by of the failure to sound reason whistle locomotive because an ordinance City Wayne of the of Fort ...” It specifically is true we did not mention Instruction considering 4 in City No. ordinance Fort Wayne application its the case. specific
For fear that we not have been as disposing question, we should have been in we specific. Appellant, petition shall be more in its rehearing, states: question properly raised, supported “The objection
proper pellee’s court, in the trial that ap- entirely ignored Instruction 4 the ordinance *32 jury appellant required and tells the that was to whistle in violation the ordinance and that negligence.” to failure italics) do (Our so constituted 4 complained Instruction No. of is as follows: I you “While have duty instructed as to the and care crossing approaching of the Plaintiff in the railroad Anthony injured, Blvd. where she was duty give it was the timely of said Defendant warning, of approach of its and locomotive train of cars on said track to the Plaintiff while approaching crossing, said street and this the de- do, fendant was bound to whether or not there was requiring signals given a statute or ordinance to be crossing, at said street and failure to exercise required part this care said Defendant crossing, shown, at said street if to exist in this case, part on the of said Defendant.” objections by made appellant thereto are as follows: objects giving plaintiff’s “Defendant Instruction presup- No. for the it reason that
poses injured, that has been which by Jury, said fact a fact to be determined therefore, said province instruction invades the Jury, of the and for the further reason that there Wayne, City in the of Fort a whistle ordinance record, requires part loco- is a which motives not to their sound whistle.” throughout appellee sus- Appellant brief assumes its point that no is made on tained an contention appeal. before us on the effect the instruction to find no statement
We required to appellant was “tells ordinance.” The fact whistle violation harmony with and should is the instruction is No. 7 with read in connection Instruction be given -court, appellee by the tendered objection. Instruction appellant no made which the follows: No. reads as you full “I that there was in force and instruct Wayne, Indiana, City of on the in the Fort effect November, 1953, day an ordinance known 10th City Wayne, Ordinance of the Fort Railroad
as Indiana, which reads as Three of follows: Section “ Blowing ‘Section Whistles: “ running any person unlawful ‘It shall be controlling any locomotive to sound the whistle to be within same sounded thereof or allow the accidents City, prevent corporate limits of unless otherwise arrested.’ which cannot you that “I instruct this ordinance therefore sounding from its defendant whistle as relieves required statute, unless, necessary pre- it is to be ar- *33 which cannot otherwise accidents vent rested.” No. states defendant has a
Instruction warning” regardless give “timely of whether duty to required it at the or statute street an ordinance say warning crossing. does not instruction should The though prohibited by an ordinance. In- given even 4 and are consistent harmonious structions Revision, together. 3 Lowe’s Work’s be construed should Practice, Indiana 55.63, p. Limiting Sec. 487. our ex- objections amination to the presented made and in the brief, appellant pointed has out no error the In- struction No. 4.
Our attention has been called to appel the fact that May 6, lee died on appeal 1956 after was sub Appellate mitted state, to the Court of this but before it was transferred to court. Under Burns’ parties no §2-3235 substitution of is neces- sary, opinion and it is our there is no reason for a change parties upon transfer this cause to this court. petition rehearing is denied.
Emmert, J., Achor, JJ., C. Landis and concur.
Bobbitt, J., dissents.
Reported in
Note. —
Rehearing denied 147 N. 2dE.
Brown v. Slentz. 29,528. January 20, Filed [No. 1958.]