193 Ind. 313 | Ind. | 1922
Action by appellee against appellant' to recover damages for a personal injury which resulted from the derailing and turning over of appellant’s interurban passenger car, named and known as the “Marion Flyer”, in which appellee was a passenger.
Appellant was the owner of and operated its interurban railway between the cities of Indianapolis and Wabash, which railway line passed through the city of Anderson. March 22, appellee purchased a ticket from appellant at its station in Indianapolis to Fairmount, a town on its railway north of Anderson, and boarded appellant’s car, the “Marion Flyer”, at Indianapolis, and did not leave the car until after the accident and
Appellee was forty-two years of age, and previous to the accident was a healthy man and had had no ilh nesses, save la grippe, for many years preceding the accident, and his activities in the management of the bank were interfered with only by an occasional nervousness due to overwork. Just previous to the accident, during the rapid descent of the car down the hill, the appellee became frightened and arose from his seat, but was thrown violently back into his seat, which was just before the car struck the curve and was thrown across the street and off its trucks. The appellee was assisted out of the car, placed in a conveyance and taken to the hospital at Anderson, where he remained for thirteen days, after which he was removed to his home at Fairmount, eight miles distant. The injury to appellee caused by the accident was a diagonal fracture of the humerus of the left arm about midway between the shoulder and elbow. The left shoulder was bruised, as was also the left knee, and, according to the evidence of the appellee, he was bruised generally all over from being rolled about in the car and from being struck by the other passengers as they were hurled against-and upon him when the car was turning over.
At the request of appellant, the court appointed two physicians to make an examination of the appellee, which witnesses gave evidence concerning their examination of appellee at the trial. The evidence- disclosed that the left arm, after it had mended from its fracture, was from one-half to three-fourths of an inch short.
The complaint in one paragraph was founded upon the alleged negligence of appellant in carelessly, negligently, and improperly operating said car; and in negligently failing to maintain said car and the equipment by which the same was operated and controlled, in a reasonably proper and safe condition; and in failing to enforce proper rules and regulations .in the operation and management of said car; and in failing to install, maintain, and use proper apparatus to control said car, and in using insufficient and worn out and defective cars and improper apparatus; and that the car at the time and place of the accident was in a defective and unsafe condition.
The trial of the issue formed by appellant’s answer in general denial of the complaint, resulted in a general verdict by the jury for the appellee in the sum of $9,000. Appellant’s motion for a new trial was overruled by the court and judgment rendered, from which appellant appealed.
The only error relied upon for reversal of the judg
Appellant points out and discusses two reasons only upon which to base the reversal of the case, viz.: (1) The verdict is not sustained by sufficient evidence and is contrary to law; and (2) the damages awarded are excessive.
The position taken by appellant, as disclosed by its argument, is that res ipsa loquitur does not apply, for the reason, as urged, that the cause of the injury complained of was purely accidental, and was not due to its negligence. Appellant takes the position that all it was charged with looking after, was fifty pounds air pressure in its tank of air, and that having had, as shown by its evidence, fifty pounds pressure behind the air brakes at the top of the hill, and that when the motorman turned on the air during the descent, the brakes failed to work, appellant was absolved from having inquired into or taken cognizance of the performance of any other way by which the accident might have been averted. If this were the only possible theory in explanation of the accident, and through which alone the accident was caused, appellant would then be in a position to ask to be placed under the protection of the rule of law it cites, which is, that if the injury were occasioned solely by.an unvoidable accident, it would not be held liable for such injury.
Appellant claims the damages are excessive, for the reason that the verdict is so extravagant as to lead to the conclusion that the jury was subject either to improper influence, prejudice or partiality; and that, even though it should be contended that the damages are not excessive, the assessment of damages was aggravated by certain evidence admitted over appellant’s objection.
The evidence complained of was, that as the car was being pushed through the city of Anderson, and at the stop in front of the Union Block, the dispatcher called from the window in the building to the motorman and said, “Let her coast down to the junction”; and because another witness, who had been an employee of appellant, in the capacity of a motorman, and who had operated its cars but four months prior to the accident, answered, that fifty pounds air pressure by which to operate the air brakes, was insufficient to manage the car at a safe rate of speed down the hill from Ninth street on Main street toward Fifth street in the city -of Anderson; and because of an answer given by the appellee concerning .his condition, in which answer he said, that because of his sleeplessness and a condition of mind that followed, he had been experiencing a feeling of “dread” of assuming his ordinary responsibilities.
Appellant maintains that by the use of the word “dread” in the answer made by appellee concerning his condition the damages were aggravated. It is not unreasonable to see that one who had been through a terrible accident, and who had been badly injured and frightened, and who was convalescing, which convalescense had been long drawn out,
The rule of law is, that a court of appellate jurisdiction will not reverse the judgment of the trial court in refusing to grant a new trial because of excessive damages, unless the damages assessed appear to be outrageous and excessive, or that it is apparent that some improper element had been taken into consideration by the jury, in determining the amount. Cleveland, etc., R. Co. v. Hadley (1907), 170 Ind. 204, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1.
The' extent of the injury as a basis for damages was for the jury to determine. The setting and incidents of the trial, as well as the conduct and appearance of
The verdict is sustained by sufficient evidence, and is not contrary to law. The damages awarded by the jury are not excessive; neither were the damages aggravated by the evidence in response to the challenged questions.
Judgment affirmed.