163 Ind. 617 | Ind. | 1904
Appellee filed his complaint in four paragraphs to recover against appellant for negligence. The first three of said paragraphs were held sufficient on de
The errors assigned draw in question the overruling of the demurrer to the first three paragraphs of the complaint, and the overruling of the motion for a new trial.
The case as presented to us is somewhat peculiar, in that the interrogatories which were submitted were so framed as to be calculated to bring out an unusually full disclosure of the findings of the jury on the evidence, and the jury returned such, answers that on most, if not all, of the matters on which there.wouhj have to be a finding in appellee’s favor to warrant a recovery by him, we are sufficiently advised as to what the jury’s conclusion was on the questions of fact. It is generally a difficult undertaking to make a narrative statement of the effect of a jury’s answers to a long series of interrogatories, and this case is no exception to the rule. Nevertheless, since the findings, or their substance, must be stated if the basis of our rulings on most points is to be made clear, we shall undertake to reduce the matter to narrative. After grouping the findings, so far as possible, according to what seems to be their natural sequence, it may be said that in substance they are as follows: On the 5th day of December, 1899, appellant was engaged in unloading dirt from a train of flat-cars, by means of a plow or shovel, which was pulled eastward by a wire cable, which was stretched lengthwise along said cars and attached to a locomotive. One Charles H. Deer Was the conductor, and in full charge of said train. ' On said day appellee was in the employ of appellant on said train as a cable man, and he had been so working during the three months immediately preceding said date. It was the duty of appellee, while in said employment, to conform
It is disclosed by a bill of exceptions that in making the •closing argument one of the attorneys for appellee said to the jury: “Find your general verdict, inserting the amount you will give the plaintiff. Then take each interrogatory, and answer each so that it may dovetail in and agree with your general verdict, and” — at this point the argument was interrupted by one of appellant’s attorneys, who objected to said statements, and moved the court to- withdraw the submission of the cause from the jury on account of the misconduct of counsel, and he further objected to proceeding with the cause-. It is disclosed that the court overruled the objections and motions, and that it stated that it would instruct the jury to answer the interrogatories according to the evidence, to each of which rulings, as the bill states, appellant excepted. Upon the conclusion of the incident, appellee’s counsel stated, in proceeding with his argument, “that the plaintiff did not desire a verdict of any kind that was not based upon the evidence.” Among the instructions afterwards given is one which directed the jury to “answer each of the interrogatories submitted as the evidence warrants, without reference to your general verdict.”
Considering the purpose that answers to interrogatories propounded to the jury are designed to subserve, it is proper in considering them in argument to discuss not only the evidence in its application to the interrogatories, but even to go further, and impress upon the minds of the jurors that, as the verdict and the answers will be considered together, great care should be exercised in the framing of their answers, to the end that the jurors shall fully apprehend the import of each interrogatory, and that their answers shall be in accord with the evidence. But we have no hesitation in stating that the suggestion made by eoun
If in the argument of a cause counsel g<? beyond the confines of legitimate argument, the court, as a minister of justice, should interfere, and this it should do whether opposite counsel are objecting or not. It does not follow, however, that a litigant who claims to have been prejudiced by improper argument can successfully complain of the failure of the court so to interfere. A duty is devolved upon his counsel directly to bring the matter to the attention of the court, to malee specific statement, if reasonably required, of the ground of the objection, and, if the wrong is not incurable, to request the court to admonish the jury not to consider the statement to which the objection is made. Coppenhaver v. State (1903), 160 Ind. 540; Robb v. State (1895), 144 Ind. 569; Worley v. Moore (1884), 97 Ind. 15; Morrison v. State (1881), 76 Ind. 335. An exception is defined by the civil code as “an objection taken to the decision of the court upon a matter of law.” §637 Burns 1901. It therefore follows that an exception can not he reserved to the argument of opposite counsel. Robb v. State, supra; Coppenhaver v. State, supra. It is only where the court has refused to sustain a proper motion that an exception can be reserved in case of improper argument. The making of the statements here under consideration furnished no ground for setting aside the submission of the cause. Appellant was only entitled to have the jury sufficiently admonished without delay that the statements should not be considered.
It is urged by counsel for appellant that there was error in the giving of certain instructions, in that the court inadvertently assumed in said instructions that the fourth paragraph of the complaint, to which a demurrer had been sustained, was in the record. The paragraph mentioned attempted to state a common law liability, it being based on the theory that appellant had negligently failed to provide a safe place. Such an inadvertence as the one mentioned would ordinarily present a serious question, but, in view of the answers to interrogatories, we must refuse to reverse on this ground. It is true that the jury found that the place where appellee was working was rendered unsafe by the act of the conductor, but this was also, in its substance, an element in a state of facts authorizing a recovery under the fourth subdivision of section one of the employers’ liability act. In part the elements of the common law liability and of the liability imposed by said
The fifth instruction given by the court contained a detailed statement of the charges of negligence, and it concluded with a statement that if the jury found appellant was guilty of negligence, through its conductor, appellee “might” recover, whether there was any negligence upon the part of the engineer or not. The objection made to this instruction is that it did not charge that the evidence must show that appellee had not assumed the risk. It will be observed that the instruction did not state that appellee was entitled to recover if he proved negligence as alleged, but its effect was to charge the jury that there might be a 'recovery by appellee although the charge of negligence as to the engineer might not have been made out. The third and eleventh instructions which the court gave to the jury stated very clearly the doctrine of assumed risk; the thirteenth instruction was to the effect that it was necessary for appellee to have a preponderance of the evidence on some paragraph of his complaint in order to recover; and the first instruction, in effect, stated that the burden was. on appéllee to prove the averments of at least one paragraph of his complaint. We are of opinion, considering the charge as a whole, that it was not misleading upon the point indicated. See American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673, 680.
Complaint is made of the sixth instruction which the court gave to the jury, but, as that instruction related to negligence upon the part of the engineer, we think that for reasons already sufficiently indicated it is not necessary to express ourselves upon this objection.
It is claimed by counsel for appellant that the verdict is not sustained by the evidence. There is a conflict in the
There is no reason for disturbing the verdict. Judgment affirmed.