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to continue and carry on his business off as to the width of the crossing and of the threshing except by hiring another machine at approaches thereto, after examining the phogreat expense. There was a demand for $2,000 damages. An answer of general denial put the case at issue, and it was submitted to the jury for trial, which returned a verdict in favor of appellee in the sum of $700, together with answers to 105 interrogatories. After motion for a new trial, which was overruled, this appeal.

[1] The only error assigned is that the court erred in overruling appellant's motion for a new trial. Appellant, in discussing this error, contends as a proposition of law that where a jury answers interrogatories contrary to the oral testimony, and there are no other visible facts connected with the case which would support the answers, it is guilty of such misconduct as will work a reversal of the judgment. To sustain this proposition appellant cites O'Connor v. Gillaspy, 170 Ind. 428, 83 N. E. 738, from which case we quote from page 437 of 170 Ind. page 741 of 83 N. E., as follows:

"An allegation in a motion for a new trial that the jury made incorrect or untrue answers to certain interrogatories returned with their general verdict will not constitute a charge of 'misconduct of the jury,' within the meaning of section 585, Burns 1908."

We do not deem it necessary to make any

further comment.

tographs that are made a part of the record,
and in view of the finding by the jury that
the cause of the separator getting stalled up-
on the railroad tracks, and the engine drive-
wheels slipping on the rail, was not because
of the lugs or grouters of the drivewheels
being worn off, the jury was justified in its
finding by its general verdict that the ap-
pellee was not guilty of negligence in stall-
ing upon the track. Certainly there is no
evidence of contributory negligence there-
after, for appellee was diligent in his efforts
to remove the separator from the track, and
in his efforts to stop the train before the
damage was sustained.
The second para-
graph of the complaint does not present the
doctrine of last clear chance, nor of willful
injury upon the part of appellant's servants.
By its allegations it presents a case of sim-
ple negligence. We have already held that
appellee was not guilty of negligence in per-
mitting his separator to be stalled upon the
track, or in failing to remove it before it was
damaged.

[4] The question, then, is whether the appellant's servants were negligent as averred in the second paragraph of the complaint, and, if so, did such negligence result in the this action? It appears by the evidence that injury complained of which was the basis of the track from the crossing to the east, being the direction from which the train was approaching, was straight for a distance of three miles. In the record appears a photograph, taken with a camera located about two miles to the east of the crossing, showing a straight track, with an automobile standing over the crossing involved. The engineer himself testified that he saw the separator on the crossing three-quarters of a mile away, and that he could see a dark object there when he was a mile and a half away. He further testified that he could make a service stop in three quarters of a mile, by which we understand a stop without the application of the emergency brakes. As he approached this crossing, the servant of appellee went down the track 500 feet, swinging a lantern and waiving a red handkerchief across the track. There is some dispute in the evidence as to the time when the emergency brakes were applied, but one witness testified that he saw the train approaching, and that such brakes were applied at about 250 feet of the crossing. The engineer says that he did not see the party who attempted to flag his train. From the foregoing evidence, the court holds that the jury was justified in finding, by its general verdict, that the employés in charge of the approaching train carelessly and negligently failed to observe the obstruction of the crossing and to stop the train in time to prevent the injury. The evidence is sufficient to sustain

[2] The next error presented by the motion for a new trial is that of excessive damages. There is evidence that the separator was worth $700 before the accident, and that afterward it was worth $100. The jury was authorized to accept this evidence as a basis of estimating the damages to the separator, though there was some contradictory evidence. The complaint avers an element of special damages in the loss of the use of the machine at the time when it was in season for threshing, and by the appellee's testimony a fair rental value of the machine was $7 per day, and there were 29 days' work yet to be done with this thresher. This was a proper element of damage. Shelbyville, etc., R. R. Co. v. Lewark, 4 Ind. 471; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686. The damages were not excessive. [3] The next error presented is that the evidence is not sufficient to sustain the verdict. In discussing this alleged error, it must be kept in mind that it is a duty, as well as a right, of the jury in rendering its verdict and answering interrogatories to take into consideration, not only the testimony of the witnesses, but also the facts and circumstances proven by the evidence and that surround the case, together with reasonable Inferences that can be drawn therefrom. It appears by the evidence, as well as by the answers to interrogatories, that the crossing which was involved in this accident was not wide enough to permit the passage of the separator. While there is some contradiction the verdict.

(125 N.E.)

[5-7] Appellant next complains of the giv-| sume that the jurors were men of at least ordiing of appellee's instruction No. 3, for the nary, intelligence.

USED IN INSTRUCTIONS.

295(6)-INSTRUCTION USING LAT

IN TERM NOT MISLEADING.

Instruction that it is not negligence "per se" for a passenger to attempt to alight from a slowly moving street car, etc., held when considered as a whole, not to have misled the jury because of the use of Latin words. 7. APPEAL AND ERROR

216(2)-MEAGERNESS

reason that there is omitted therefrom the 5. TRIAL 228(3)-LATIN TERMS NOT TO BE element of contributory negligence. Under the evidence, in this case as aforesaid, the The court should not have used Latin terms appellee was not guilty of contributory negli- in the charge to the jury; the presumption begence. Further, by appellant's instruction ing that jurors do not understand them. No. 3 which was given, the jury was fully 6. TRIAL instructed with reference to the contributory negligence of the appellee. Instruction No. 4 was a correct statement of the law with reference to the damages sustained by the appellee, though it might well have been more specific as to the elements of damage. Ap pellant, having failed to tender a correct instruction that was more specific, may not complain. The refusal of the court to give other instructions tendered by appellant is complained of, but, after reading such instructions, we deem it sufficient to say that they were properly refused, without extending this opinion by a discussion of them. Appellant could not have been harmed because appellee was permitted to show the amount of travel on the road involved. It was proper to show the value per day of the use of such a separator as here involved as one of the elements of appellee's damages. The judgment is affirmed.

(74 Ind. App. 642)

INDIANAPOLIS TRACTION & TERMINAL
CO. v. THORNBURG. (No. 10010.) *
(Appellate Court of Indiana, Division No. 2.
Nov. 21, 1919.)

OF INSTRUCTION WILL NOT BE CONSIDERED
IN ABSENCE OF REQUESTS.

Objection on ground that instruction on contributory negligence is meager will not be sustained on appeal, where defendant appellant did not request an amplified instruction, but tendered and had given an instruction substantially the same as that complained of.

8. CARRIERS 321(11) - NEGLIGENT OPERA

TION SHOWING INCOMPETENCY OF MOTORMAN.

Instruction that sudden starting of the car from which a passenger is alighting may be considered in determining whether car was operated by an incompetent motorman is not subject to objection that an act of negligence of motorman would not tend to prove that he was incompetent.

9. TRIAL

234(7)-INSTRUCTION ON "BURDEN OF PROOF"; "BURDEN.'

Instruction that, if car was started suddenly without warning to plaintiff as she was about to alight, the burden rests on defendant traction company to explain, etc., the word "burden" was not used as the equivalent of the

1. TRIAL 296(7)—ERRONEOUS INSTRUCTION phrase "burden of proof," but as synonymous

CURED BY OTHER INSTRUCTIONS.

not be sustained; the quoted phrase having a highly technical meaning, denoting a principal or idea relating exclusively to procedure.

with the word "duty" and objection that it In action for personal injuries due to plain-placed on defendant the "burden of proof" cantiff being thrown from one of defendant traction company's cars, though instruction that defendant's denial placed burden on plaintiff to prove "the material allegations, or at least one of them," is subject to criticism, its giving was not reversible error, in view of other instructions from which jury must have understood that "averments of negligence" were meant.

2. TRIAL 295(1)-INSTRUCTIONS CONSIDERED AS AN ENTIRETY.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Burden; Burden of Proof.]

10. TRIAL 296(3) — ERRONEOUS INSTRUCTION ON PRESUMED NEGLIGENCE CURED BY OTHER INSTRUCTIONS.

In action for personal injuries due to plain

The instructions must be considered as an tiff being thrown from one of defendant traction entirety.

3. APPEAL AND ERROR 1064(1)—TRIAL
295(2)—ERROR IN INSTRUCTIONS CURED BY
CONSIDERING CHARGE AS A WHOLE.

Error in a particular instruction will not justify reversal, unless it be of such nature as to vitiate the whole charge, and the entire charge is vitiated only when it is so erroneous that jurors must have been misled as to the law of the case.

4. APPEAL AND ERROR 930(2) — PRESUMPTION THAT JURORS ARE OF ORDINARY INTELLIGENCE.

company's cars, giving an instruction objected to on the ground that it constituted an erroneous application of the doctrine of presumed negligence, held not reversible error, in view of all the instructions, the theory adopted at the trial

and the evidence.

11. NEGLIGENCE 80-CONTRIBUTORY NEG

LIGENCE DEFENSE TO PRESUMED NEGLIGENCE. A presumption of negligence does not preclude the defense of contributory negligence. 12. CARRIERS 316(7)—INJURY DUE TO MACHINERY AND APPLIANCES RAISES PRESUMPTION OF NEGLIGENCE.

The court on appeal in determining whether When a passenger is injured by reason of instructions were understood is bound to pre-machinery and appliances used by a common

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied. Transfer denied.

carrier, and wholly under its control, negligence | correctness of five instructions given, and alon the part of the carrier will be presumed. 13. DAMAGES 210(2)-INSTRUCTION LIMIT

ING DAMAGES TO THOSE ALLEGED.

In an action for personal injuries due to plaintiff being thrown from one of defendant traction company's cars, instruction that if the finding is for plaintiff jury shall determine what will compensate her for all damages sustained by reason of the injury held not subject to objection that the damages were not limited to those shown in the complaint.

14. TRIAL 296(11)-ERROR IN INSTRUCTION ON DAMAGES CURED BY OTHER INSTRUCTION.

Where in another instruction jury was told in plain language that amount of damages must be determined from the evidence, objection that instruction to compensate for all damages sustained by reason of the injury did not limit damages to those shown by the evidence will be overruled on appeal.

so challenges the action of the court in refusing one instruction tendered by appellant.

[1] 1. In its instruction No. 1 the court recited at length the substance of the complaint. The first paragraph of instruction No. 2 is in the following language:

ed by a general denial. This denial by the de"To this complaint, the defendant has answerfendant places the burden on the plaintiff to prove by a preponderance of the evidence the material allegations or, at least, one of them before she can recover."

The remainder of the instruction is devoted to a statement of the material allegations of the complaint. As thus stated, the complaint contains two allegations of negligence, viz.: (1) that appellant negligently permitted its car to be operated while equipped with a brake which was defective and unfit for use;

15. TRIAL 234(7) — INSTRUCTION ON PRE- and (2) that appellant negligently permitted

[blocks in formation]

its said car to be operated by an unskilled, inexperienced, incapable, and careless motorman. The other material allegations embraced in said statement are those which aver the existence of the relation of carrier and passenger, the sudden movement of the car which threw appellee to the ground, the nature and extent of her injuries, and the expenditure by her of an amount of money for medical attention and nurses.

The objection to instruction No. 2 is direct

ed against the first paragraph thereof. The contention is that by said paragraph the jucontention is that by said paragraph the jurors were told, by implication, that if appellee had proved any one of the material alle

Appeal from Circuit Court, Owen County; gations of her complaint she was entitled to Robert W. Miers, Judge.

Action by Katherine Thornburg against the Indianapolis Traction & Terminal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

S. C. Kivett and D. E. Watson, both of Martinsville, Willis Hickam, of Spencer, and W. H. Latta, of Indianapolis, for appellant.

Homer Elliott, of Martinsville, and Charles B. Clarke and Walter C. Clarke, both of Indianapolis, for appellee.

DAUSMAN, J. Appellee instituted this action in the Marion superior court to recover damages for personal injuries alleged to have been sustained when she was thrown from one of appellant's cars in the city of Indianapolis, by reason of appellant's negligence. The venue was changed to the Owen circuit court, where the cause has been tried twice. The second trial resulted in a verdict for appellee in the sum of $2,909. With their verdict the jurors returned answers to 25 interrogatories. Judgment on the verdict. The only error assigned and presented is the overruling the motion for a new trial. Under that assignment appellant challenges the

recover. The paragraph under consideration not approve the language of that paragraph. is justly subject to that criticism. We canBut that is far from saying that it constitutes reversible.error.

[2, 3] The instructions must be considered as an entirety. In reality there is but one instruction, one charge, given to the jury. But because of the serial nature of thought and expression, the charge necessarily must consist of several paragraphs each of which is devoted to some particular feature of the case; and it is for convenience only that these paragraphs are numbered and designated as separate instructions. No instruction is to be regarded as independent and isolated, but rather as a related and connected part of the entire charge. The rule is that error in a particular instruction will not justify a reversal unless it be of such a nature as to vitiate the whole charge. The entire charge is vitiated only when it is so erroneous that the jurors must have been misled as to the law of the case. Shields v. State, 149 Ind. 395, 406, 49 N. E. 351. With this rule in mind we scan the charge and find several instructions bearing on the alleged error now under consideration. One of them reads as follows:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

"While the burden is upon the plaintiff in this case to prove the material allegations of her complaint, I charge you that if the plaintiff has proven any one of the alleged acts of negligence, and that that negligence caused the injuries to plaintiff, then plaintiff has complied with all the requirements resting on her in this respect."

would be instructed on the subject of contributory negligence, and should have antici pated that the law of that subject would be stated in general terms. Therefore, if appellant desired an amplified instruction it should have prepared one to its liking, and requested the court to give it. Instead of pursuing that course, appellant tendered, and the court [4] The other instructions relating to this gave to the jury "defendant's instruction No. matter we need not embody in this opinion. 11," which is substantially the same as the It is sufficient to say that after hearing all one of which appellant is now complaining, the instructions the jurors must have under-except that it contains no Latin words. stood that both averments of negligence need 3. Another instruction, given at the request not be proved, but that proof of one of them of appellee, is in the following language: would be sufficient. We are bound to presume that the jurors were men of at least ordinary intelligence, and that precludes the presumption that they were so dense as to understand that it was their duty to find for appellee if only one of the material allegations of the complaint had been proven.

[5, 6] 2. An instruction requested by appellee and given by the court reads as follows:

"It is not negligence per se for a passenger to attempt to alight from a slowly moving street car, and whether such an act contributed to the injury of the passenger is a question for the jury. So in this case I charge you that the plaintiff was only charged with the duty of exercising reasonable care in alighting from the car, and she is not to be denied a recovery herein solely upon the ground that the car was in motion, if you find it was in motion, at the time she attempted to alight therefrom. If at the time she was alighting from said car she was exercising the degree of care that any person of ordinary prudence would have exercised, then she was not negligent."

The first objection addressed to this instruction is that the court should not have used Latin in its charge to the jury. We concur in that criticism. The presumption. is that jurors do not understand Latin; and there is no justification for the use of Latin in instructions. The Latin words, phrases, and sentences used in our law books have no place in the court's charge to the jury. Their meaning can be expressed with as much force and elegance in English; and a just pride in the accurate use of our national tongue would facilitate the administration of justice. However, when the residue of the instruction is considered, it becomes apparent that the Latin words could not have misled the jurors as to the law of the case or of the particular feature involved in the instruction.

[7] The second and third objections addressed to the instruction rest on the proposition that it is meager. The contention is that the jurors should have been instructed that in determining whether appellee was chargeable with contributory negligence they should consider the speed of the car, the danger to be apprehended, and the the manner in which the attempt was made. The appellant was bound to know that the jury

"If you find from the evidence that plaintiff was a passenger on one of defendant's cars, and that on nearing Drexel avenue plaintiff desired to alight from said car, and that said car came to an apparent stop at said time, and plaintiff attempted with others to alight therefrom, and at said time said car, without any increased speed, then you may consider such warning, suddenly started or moved on with facts as to the sudden starting of said car, if so proven, in determining whether or not said car was operated by an incompetent motorman, or that there were defective appliances on said car as charged in the complaint, or that the motorman carelessly started said car, and if you should find that said car started suddenly and without warning to plaintiff, as she was about to alight and was in a place of danger, if said car was so started, then the burden rests upon the defendant to explain said facts, and to show that said car did not suddenly and without warning move forward on account of any act of an incompetent motorman, or on account of any defective appliance on said car, all as charged in the complaint."

[8, 9] The objections to this instruction are: (1) That an act of negligence on the part of the motorman would not tend to prove that he was incompetent; and (2) that the sudden starting of the car, under the circumstances stated in the instruction, would not shift the burden of proof onto appellant to show that the motorman was competent, or that the car was equipped with proper appliances, or to explain the cause of the sudden starting of the car.

We are of the opinion that the first objection is not well taken. If the sudden starting of the car was due to the carelessness of the motorman, then that carelessness must have some bearing on the question of his competency. A motorinan who is habitually careless in the matter of controlling the movement of his car surely would be incompetent, unsuitable, unqualified, and unfit to hold his position. If by a single act of gross carelessness a motorman should cause a serious accident resulting in great financial loss to his employer, no doubt the employer would seriously consider the advisability of discharging him on the ground of incompetency, even though in fact he knew how to operate a car properly.

Counsel for appellant insist with much

earnestness that the court erred in charging stitutes an erroneous application of that docthe jury to the effect "that the mere starting trine. A careful examination of the instrucof the car was itself sufficient to cast on the tion will disclose that it does not literally defendant the burden of proof to explain the include the idea of presumed negligence. But condition of the appliances or the incompe- it may be said with some degree of plausitency or negligence of the motorman." The bility that the effect of the instruction is phrase "burden of proof" has a highly tech- as counsel contend. Since not to do so might nical meaning. The idea, or principle, which be regarded evasive, we will determine the it denotes relates exclusively to procedure. contention on counsel's assumption. Its function is to guide the court in settling the issues, in securing an orderly presentation of evidence at the trial, etc. But it is a matter with which jurors should have nothing whatever to do. 5 A. & E. Enc. 21; Indianapolis, etc., v. Taylor, 158 Ind. 274, 279, 63 N. E. 456; Pittsburgh, etc., v. Lightheiser, 163 Ind. 247, 262, 71 N. E. 218, 660; Pittsburgh, etc., v. Collins, 163 Ind. 569, 573, 71 N. E. 661.

However when we scrutinize the instruction we find that the court did not use the phrase "burden of proof." The instruction consists of a single sentence composed of about 200 words rather awkwardly put together. But the gist of it is that if the car suddenly started forward under the conditions stated, then, if appellant would avoid the charge that the sudden movement of the car was due either to defective brakes or to the carelessness of the motorman, the burden is on appellant to show that the sudden starting of the car was due to some other cause. It should be noted that the court did not use the word "burden" as the equivalent of the technical phrase "burden of proof," but rather as synonymous with the word "duty." 10 R. C. L. 896. That duty appellant attempted to discharge by showing that the sudden starting of the car was due to a slick track occasioned by weather conditions; and the jury found by its answer to one of the interrogatories requested by appellant that the track was not slick.

By certain instructions requested by appellant the jurors were charged in clear and unequivocal language as follows:

"If plaintiff recovers at all in this action, she must recover upon the theory thus expressed in her complaint. Proof that she was injured by any other act of negligence, not charged in the complaint, or in any manner not charged in the complaint, would not entitle plaintiff to recover.

"If you find * that in truth and in fact such movement was not due to defective brakes and not to an incapable motorman, but was due to the conditions of the track as a result of weather conditions on the occasion in question, then I instruct you that, even though plaintiff was injured by such movement, yet she cannot recover. If the facts be as indicated in this instruction, your verdict should be for the defendant."

[10] Counsel for appellant contend that the so-called "doctrine" of presumed negligence is not applicable to the case at bar; and they assume that the giving of the instruction con

[11, 12] It is true that in the case of Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874, it was said that a presumption of negligence did not arise because the question of contributory negligence was involved. In that case a presumption of negligence was properly excluded, but the reason given therefor, above stated, is invalid. A presumption of negligence does not preclude the defense of contributory negligence. Liability does not necessarily follow negligence. Negligence may be presumed or even confessed, and yet liability may be avoided by establishing contributory negligence. The courts are generally agreed that when a passenger is injured by reason of the machinery and appliances used by the common carrier, which machinery and appliances are wholly under its control, negligence on the part of the carrier will be presumed. 20 R. C. L. 188. The presumption arises out of experience and the doctrine of probabilities. 20 R. C. L 184. In such cases the rule is that if the carrier would relieve itself of the presumption of negligence it must show that the accident occurred in spite of the fact that it exercised the proper degree of care. One reason for the rule is found in the relative situation of the parties. In the case at bar the appellee was not in a position to search out and prove by direct and positive evidence the true cause of the sudden starting of the car; and she was not bound to do so in order to make a prima facie case of negligence, even under the averments of her complaint. From the evidence adduced by the appellee the jurors would have been justified in drawing the inference that the cause of the sudden starting of the car was as averred in the complaint; and if appellant would avoid that inference, it was in a peculiarly favorable position to show a different cause. By so doing it might, or might not, have avoided liability. However, it clearly appears by the later cases that the reasoning of the Marion Case, in so far as it relates to the element of contributory negligence, has been abandoned. Terre Haute, etc., v. Sheeks, 155 Ind. 74, 56 N. E. 434; Cleveland, etc., v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1; Evansville. etc., v. Mills, 37 Ind. App. 598, 77 N. E. 608. The decisions of the courts generally are in harmony with these latter cases. See the cases collected in note to McGinn v. New Orleans R. & L. Co., 13 L. R. A. (N. S.) 601. As to the nonexistence of a presumption of negligence, appellant relies mainly on Dress

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