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828. The court in its instructions called attention to the dismissal of the fourth paragraph, and limited recovery to the remaining paragraphs which were read to the jury.

It follows, therefore, that the court did not err in overruling the motion to withdraw the case from the consideration of the jury, or in refusing to withdraw from the consideration of the jury the evidence applicable to the fourth paragraph of complaint.

to give special instructions to eliminate from | Co. v. Clark, 32 Ind. App. 644-648, 70 N. E. the verdict such improper element, and to include therein only such elements as the law authorizes. Having failed so to do, the error, if any, was thereby waived, and is not available to reverse the judgment. Evansville Furniture Co. v. Freeman, 57 Ind. App. 576-585, 105 N. E. 258, 107 N. E. 27; Domestic Block Coal Co. v. De Armey, 179 Ind. 592-606, 100 N. E. 675, 102 N. E. 99; Chicago, etc., Ry. Co. v. Biddinger, 109 N. E. 953-958; Elliott's Appellate Procedure, §§ 625-627; Inland Steel Co. v. Kiessling, 183 Ind. 117-120, 108 N. E. 232; Mfg. Natural Gas Co. v. Leslie, 22 Ind. App. 677, 684, 51 N. E. 510. The jury was correctly instructed as to the measure of damages.

[7] We cannot say from the evidence in this case that the account of the verdict as modified by the remittitur is such as to indicate that the jury was influenced by prejudice, partiality, or corruption in assessing appellee's damages. Under all the facts disclosed, the award does not seem to be excessive or unreasonable. Suelzer v. Carpenter, 183 Ind. 23-31, 107 N. E. 467; Hamilton, etc., Co. v. Larrimer, 183 Ind. 429-433, 105 N. E. 43; Cleveland, etc., Ry. Co. v. Harrison, 178 Ind. 324–329, 98 N. E. 729; Chicago, etc., Ry. Co. v. Roth, 107 N. E. 689.

[8,] Appellant also urges as ground for a new trial the refusal of the trial court to withdraw from the consideration of the jury the evidence applicable to the fourth paragraph of complaint, which was dismissed at the conclusion of the evidence; also in overruling appellant's motion to withdraw the case from the jury upon the dismissal of said fourth paragraph. The contention is based on the proposition that appellee was given unfair advantage by the dismissal of the paragraph, and thereby obtained the benefit of evidence and inferences to which he was not entitled under either of the remaining paragraphs, and that the effect was to mislead and confuse the jury. The cases cited and relied on by counsel for appellant are not in point under the facts of this case. The main facts of each paragraph are the same, and we have already indicated their principal differences. The paragraph dismissed and the third, which remained in, were drawn under statutes which, as applied to the facts of the case at bar, eliminate the defense of assumption of risk. As already shown, the averments of the third paragraph were broad enough to make the evidence proper under the fourth paragraph appropriate to the third. Section 8020a, Burns 1914; Chicago & E. Ry. Co. v. Mitchell (Sup.) 110 N. E. 681; Nordyke & Marmon Co. v. Hilborg, 110 N. E. 684; Vandalia Ry. Co. v. Stillwell, 181 Ind. 267, 104 N. E. 289; section 8029, Burns 1914; U. S. Cement Co. v. Cooper, 172 Ind. 599-606, 88 N. E. 69; Bemis, etc., Bag Co. v. Krentler, 167 Ind. 653-658, 79 N. E. 974; Koehler v. Harmon, 52 Ind. App.

[10] If appellant was not satisfied with the instructions of the court on the subject of dismissal of the fourth paragraph and the application of the evidence to the other paragraphs, it should have tendered more complete instructions on the subject; for the instructions given on that subject were correct as far as they went.

[11] Appellant also contends that there is no evidence to sustain the finding of the jury that there was a promise to repair the guard. The jury found the fact both by their general verdict and their answers to interrogatories. The fact may be found without proof of an express promise. The conversations and conduct of the parties shown by the evidence is sufficient to warrant the inference drawn by the jury. Indianapolis, etc., Ry. Co. v. Watson, 114 Ind. 20-27, 14 N. E. 721, 15 N. E. 824, 5 Am. St. Rep. 578, Crum v. North Vernon, etc., Co., 34 Ind. App. 253-256, 72 N. E. 193; 26 Cyc. p. 1211.


[12] Furthermore, under the third paragraph of complaint, no promise to repair was necessary to relieve appellee from assuming the risk incident to the unguarded cogwheels. The facts alleged bring the case within the provisions of the Employers' Liability Act of 1911, and also show that the machinery was unsafe because the cogwheels were not guarded; that it was practicable to guard the same without interfering with the use and efficiency of the machinery for the purposes intended, as required by the Factory Act of 1899. Acts 1899, p. 231 (section 8029, Burns There is evidence tending to prove all the material allegations of the third paragraph. Therefore, if appellant was correct in his contention as to the failure of proof to show a promise to repair, he would not on that account be entitled to a reversal of the judgment; for it might still be sustained on the third paragraph of complaint. Furthermore, the entire record shows that there was practically no dispute as to the material allegations of the complaint, and particularly so as to the second and third paragraphs, and that the defense was contributory negligence. On page 176 of appellant's brief it

is said:

"There was no contention that the cleaning it was appellant's contention that appellee had was wrongful, and especially not the oiling, but no business to undertake the obviously dangerous act of cleaning said oil cup by placing his chine was in operation, with waste so protrudhand directly over said meshes while said maing from his hand as to be caught in said

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 238, 240, 241; Dec. Dig. 117(1).]

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The facts showing liability in the first in- | than 30 days after the verdict was rendered was stance being practically uncontroverted, and too late. it being admitted that appellee was acting in the discharge of his duties when injured, the one sharply controverted question was his alleged contributory negligence. This was a question of fact for the jury, and the issue was fully and fairly tried. Both the general verdict and the answers to the interrogatories indicate a finding against appellant on the issue, and we find in the record nothing which warrants this court in holding that the jury was not warranted in so doing. Pinnell v. Killy, 54 Ind. App. 59, 99 N. E. 772; National Fire Proofing Co. v. Smith, 55 Ind. App. 124-138, 99 N. E. 829.

In determining whether error was committed in overruling a motion for judgment on the answers to interrogatories, the Appellate Court will assume in favor of the general verdict that every supposable fact legally admissible under the issues was proven.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3759; Dec. Dig. 930(3).] 4. CARRIERS 247(2) PASSENGERS-RELA


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One who has purchased a ticket at a station entitling him to passage on a train thereby creates the relation of carrier and passenger.

[13] Complaint is also made of the failure of the court to require the jury to answer [Ed. Note.-For other cases, see Carriers, certain interrogatories. Each of the inter- Cent. Dig. §§ 984-987; Dec. Dig. 247(2).] rogatories involved was conditioned on an af- 5. TRIAL 359(1)-GENERAL VERDICT-ANfirmative answer to a preceding interrogatory SWERS TO INTERROGATORIES. as to which the jury had answered, "No evi- It is the duty of the court to reconcile andence." The interrogatories as to which fur-swers to interrogatories with the general verdict if possible, and the court should consider all the ther answers were requested were not an- interrogatories and answers together in connecswered, for the apparent reason that no tion with all facts favorable to the general veranswer was required unless an affirmative dict that might have been legally proven under answer was made to the preceding question. the issues, and if, when so considered, there is a In this situation appellant was not harmed dict must stand. reasonable possibility of reconciliation, the verby the ruling. Section 572, Burns 1914; Indianapolis, etc., Co. v. Temperly, 159 Ind. 651-656, 64 N. E. 906, 95 Am. St. Rep. 330; C., H. & I. Ry. Co. v. Cregor, 150 Ind. 625628, 50 N. E. 760; Cleveland, etc., Co. v. Stevens, 49 Ind. App. 647-653, 96 N. E. 493. Some questions are suggested and discussed in regard to the instructions and the evidence. We have examined the instructions and other questions suggested, and find nothing that can avail appellant or justify the extension of this opinion by their consideration in detail. On the controverted and material issues the case was fully and fairly tried, and appellant was deprived of no substantial right which could in any way affect or change the result.

We find no reversible error.
Judgment affirmed.


(62 Ind. App. 447)

LAKE ERIE & W. R. CO. v. MCCONKEY. (No. 9074.)

(Appellate Court of Indiana, Division No. 1. June 21, 1916.)

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Assignments of error not presented by the
appellant's brief will be deemed to be waived.
[Ed. Note. For other cases, see Appeal and
Error, Cent. Dig. § 4255; Dec. Dig. 1078(1).]

Under Burns' Ann. St. 1914, § 587, providing that an application for a new trial may be made at any time within 30 days from the time the verdict is rendered, an application filed more

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 857-860, 875, 878; Dec. Dig. 359(1).] 6. CARRIERS 322-ACTIONS FOR INJURIES— ANSWERS TO INTERROGATORIES GENERAL VERDICT-CONSISTENCY.


been caused by defendant railroad in negligently In an action for damages alleged to have permitting a freight truck to be left on a station platform so as to roll against plaintiff taking passage on a train, answers to interrogatories, to the effect that plaintiff was so struck, that at the time a person waiting to take passage on the same train climbed upon or leaned against the truck, that the presence of the truck made the platform dangerous, and that the imthe act of such other person in getting upon the mediate and proximate cause of the injury was truck causing it to roll against plaintiff, were not necessarily contradictory to or inconsistent with a general verdict for the plaintiff.

[Ed. Note. For other cases, see Carriers, Dec. Dig. 322.]


It is no defense to an action for a negligent injury that the negligence of a third person contributed to the injury, if the negligence of the defendant was an efficient cause of the injury, as the negligence of two independent persons may concurrently result in injury to a third, in which event the injured party may maintain his action against either or both of them.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 75; Dec. Dig. 61(2).]


In a passenger's action for injury from being struck by a freight truck on the station platform, an interrogatory as to whether the immediate and proximate cause of her injury was the act of another in getting upon the truck and causing it to roll against the plaintiff was improper as calling for an answer involving a definition of proximate cause.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 830; Dec. Dig. 350(5).]

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

Appeal from Circuit Court, Henry County; Ed Jackson, Judge.

Action by Minnie McConkey against the Lake Erie & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John L. Rupe, of Richmond, John B. Cockrum, of Indianapolis, W. G. Butler, of Richmond, and Bundy & Jones, of New Castle, for appellant. Forkner & Forkner, of New Castle, for appellee.

HOTTEL, P. J. This is an appeal from a judgment for appellee for $1,000, in a suit brought by her to recover damages for injuries alleged to have been caused by appellant negligently permitting one of its freight trucks to be left on its platform in such position and at a place where it rolled out and tion and at a place where it rolled out and struck appellee when she was on such platform to take passage on one of appellant's trains.

[1] Five errors are assigned in this court; but, as only two of them are presented by appellant's brief, the others will be deemed waived. Kemery v. Zeigler (Sup.) 109 N. E. 774; Palmer v. Beal, 110 N. E. 218, and cases cited.

The errors presented are those which challenge the action of the trial court in overruling appellant's motion for judgment on the answers to interrogatories, and its motion for

new trial.

[2] The verdict on which the judgment appealed from rests was returned May 20, 1914. The motion for a new trial was not filed until July 1, 1914, and more than 30 days after

the verdict was rendered.

Section 587, Burns 1914, provides: "The application for a new trial may be made at any time within thirty (30) days from the time when the verdict or decision is rendered ** and not afterwards."

In construing this provision of the statute, the Supreme Court, in the case of Talbot v. Meyer, 109 N. E. 841, 842, said:

"This act (Acts 1913, p. 848) positively fixes the time for the filing of a motion for a new trial within thirty (30) days from the rendition of the verdict, and emphatically declares that it shall not be filed afterwards.'

See, also, Acme White Lead, etc., Works v.

Indiana Wagon Co. (decided this term) 112

N. E. 392.

[3, 4] The only question remaining is the ruling on appellant's motion for judgment on the answers to interrogatories. Such interrogatories and answers are as follows:

"(1) Was the plaintiff's injury for which she sues in this cause caused by her being struck by a truck on the platform of defendant's station, at Cambridge City, Ind., June 30, 1912? Answer: Yes.

"(2) Was there at the time the truck fell and strack plaintiff's leg a man by name of Shook climbing upon or sitting or leaning with his whole body upon the truck? Answer: Yes.

"(3) Was the man Shook on the truck a man waiting to take passage on same train with plaintiff? Answer: Yes.

or in any relation with the defendant except that he was waiting as a passenger to take passage on the train? Answer: No.

"(5) Did any employé of defendant give any direction to the man Shook to get upon the truck or have any knowledge of his being upon it prior to the accident? Answer: No.

"(6) Would the presence or position of the truck have constituted any danger on the platform but for the act of Shook in climbing upon it? Answer: Yes.

"(7) Was the immediate and proximate cause of the plaintiff's injury the act of the man Shook getting upon the truck, causing it to fall and with the weight of his body roll against the plaintiff's leg? Answer: Yes."

In determining whether error was committed by the trial court in overruling the mocourt will assume in favor of the general tion for judgment on these answers, this verdict that every supposable fact legally adcourt will assume in favor of the general missible under the issues was proven in supmissible under the issues was proven in support of such verdict. Meyers v. Winona, etc., R. Co., 58 Ind. App. 516, 106 N. E. 377; Chicago, etc., R. Co. v. Dinius, 180 Ind. 596, 103 N. E. 652.

That we may know what might have been proven, we must look to the issues tendered by the pleadings. The averments of the amended complaint on which the cause was tried, affecting the questions presented by such answers to interrogatories, show that appellee had purchased a ticket entitling her hence had created between herself and apto passage on one of appellant's trains, and pellant the relation of carrier and passenger; from the ticket office to the proper place to that after purchasing her ticket she started. take her train; that she traveled the usual and ordinary course in going to the train, and while so doing, and just after walking out of the door on the platform, "she was struck by a freight truck which was carelessly and negligently permitted by the servants and employés of appellant to stand against the wall, immediately east of the door of the waiting room, which then and there rolled out from said wall against appellee" and struck and injured her; that such truck "was used in wheeling and transporting freight on the platform in that part of the station used for freight purposes;" that some time prior to the time appellee walked out of the door of the waiting room the servants and agents of appellant had carelessly and negligently leaned such truck against the side of the station, just east of the door in such a way that the same would be liable to roll out upon the platform and strike a passenger walking thereon, and this plaintiff expressly charges that said defendant company was negligent in placing said freight truck upon said platform in the manner aforesaid; and that the placing of said truck as aforesaid was the proximate cause of this plaintiff's said injuries.

In addition to a general denial, appellant filed an affirmative answer in which it admits its corporate existence, its business, etc., and avers in substance that it had a small

sole cause of appellee's injury, and in response had answered, "Yes," a very different question would be presented for our consideration from that which is now presented by the record.

[5] As above indicated, it is the duty of the court to reconcile such answers with the general verdict if possible, and to such end the court should not single out a particular interrogatory and answer, and consider it separate and apart from the others, but should consider all of the interrogatories and answers together, in connection with any and all facts favorable to the general verdict that might have been legally proven under the issues, and if, when so considered, there is a reasonable possibility of reconciliation between such answers and the general verdict, the latter must stand. Applying this test to the interrogatories and answers, supra, it seems to us there is little ground for appellant's contention that the general verdict must fall before them.

scribing it in detail, which was being used in the regular business of the company on said day; that the agent of the company using such truck leaned it against the depot building in a careful manner, and so that it would constitute no danger whatever to passengers or any one on the platform; that while it was so standing or leaning against the building a Mr. Shook, who was 47 years of age and a wholly responsible agent, not in the employ of appellant, was upon the depot platform of his own volition as an idler, having no business or relation whatever with appellant; that the agents of appellant had no knowledge of Shook's presence; that Shook, of his own volition, without any direction of any agent of appellant, and without the knowledge of such agent, but simply as a meddler, climbed upon the truck as it leaned against the building, with his feet resting upon the iron guard at the end thereof next to the floor or the platform and just above the wheels, and leaned his body back against the truck, and while so situated, by motion of his body, caused the truck to slip and the wheels thereof to move forward, and caused the truck with the weight of his body thereon to strike appellee as described in the complaint; that the injury occurred wholly as stated herein and not otherwise. To this affirmative answer there was a re- or act of some third person might become, a ply in general denial.

The verdict is a finding in favor of the averments of the complaint and against those of the affirmative answer which are in conflict with the former.

Appellant's contention that judgment should have been rendered on said answers to interrogatories is based mainly on the answer to interrogatory No. 7. It is insisted in effect that this answer shows that the immediate and proximate cause of appellee's injury was the act of Shook, and that appellant's act, even if negligent, only created a condition; that an intervening responsible agent broke the line of causation between such condition and appellee's injury.

As applicable to this contention, this court, in the case of Cleveland, etc., R. Co. v. Clark, 51 Ind. App. 392, 403, 404, 97 N. E. 822, 827, said:

"If the agency intervening was one over which the original tort-feasor had no control, and which was not put in motion by the original wrongful act, and if the character of the intervening agent, and the manner of the intervention, were such as, under the circumstances, could not reasonablý have been expected to occur in the ordinary course of nature and according to common experience, then such independent agency so intervening will be treated as the sole proximate cause, and the original wrongful act will be treated as only a condition."

[6, 7] There is no finding by the jury that Shook caused the truck to fall, or that such act was the sole proximate cause of appellee's injury; and, in any event, appellant might have reasonably foreseen and anticipated that its truck, left in the position it was, would be, or by the unintentional movement

menace to the life and limb of passengers on its platform.

By answer to interrogatory No. 6, the jury expressly finds that the presence or position of the truck on the platform constituted a danger independent of the act of Shook in climbing on it, and the general verdict is a finding that appellant was guilty of the negligent act charged in the complaint and that such act was an original proximate cause of appellee's injury. The answer to No. 7, when read in the light of such other answer and facts, is no more than a finding that Shook's act was also a cause, proximate in character, and immediate in point of time, which concurred with the original cause in producing appellee's injury; that the injury was the result of a combination of said causes concurring at the time of the injury, each operating to produce it, and without either it would not have resulted. Such being the possible effect of said answers, they are not necessarily contradictory to, or inconsistent with, the general verdict.

"It is no defense, in an action for a negligent injury, that the negligence of a third person, or an inevitable accident, or an inanimate thing, contributed to cause the injury of the plaintiff, if the negligence of the defendant was an efficient cause of the injury. * * In such cases, the fact that some other cause operates with the negligence of the defendant in producing the injury does not relieve the defendant from liabilsome other cause and both operating approximately, at the same time in the production of the injury, he is liable to respond in damages whether the other cause was a guilty or innocent one. In cases of this character, the negligence of two independent persons may concur

If by interrogatory No. 7 it was desired to foreclose and conclusively settle the ques-ity. ** His original wrong concurring with tion of the sole cause of appellee's injury, the propounder thereof was unfortunate in the selection of the language, employed for such purpose. If the jury had in fact been asked if it found that Shook's act was the

rently result in injury to a third, in which event | of which survives, and any of them die before the injured party may maintain his action final judgment, the action shall not abate, but against either or both of the negligent parties." upon suggestion of death the cause may proceed 16 Am. & Eng. Ency. of Law, 440-443; Louis- against the surviving defendants as if they had ville, etc., Ferry Co. v. Nolan, 135 Ind. 60, 67, been original and only defendants, and section 34 N. E. 710. 13, providing that in case of the death of all the joint defendants the cause may proceed against the representatives of the last surviving defendant, the death of an individual joint defendant severed his liability, and, while his representative might be proceeded against in a saved as against his personal representative. separate action, the pending action was not

See, also, Belt R. Co. v. McClain, 58 Ind. App. 171, 106 N. E. 742; Indianapolis, etc., R. Co. v. Waddington, 169 Ind. 448, 463, 82 N. E. 1030; Baltimore, etc., R. Co. v. Kleespies, 39 Ind. App. 151, 164, 76 N. E. 1015, 78 N. E. 252; Anderson v. Evansville Ass'n, 49 Ind. App. 403, 97 N. E. 445; 3 & 8 Thompson, Negligence (2d Ed.) § 2779.

[Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 403-411, 417-428; Dec. Dig. 73.]


A plea in abatement claiming the defendant's privilege not to be sued out of the county where she resided or might be found, alleging that she was an executrix served with process in G. county, that her coexecutor was a resident of W. county, that her intestate died after the cause of action accrued, that his death was brought to the attention of the court before the plaintiff dismissed the action as to a joint corporation defendant served in C. county, with a prayer for judgment, was good.

[Ed. Note.-For other cases,
Cent. Dig. § 215; Dec. Dig.

see Pleading, 104(2).] 99-PLEA OF ABATEMENT

Under these authorities, appellant was not relieved from liability herein by reason of Shook's act, though it concurred with appellant's negligence in producing the injuries for which the action herein was brought, and the judgment appealed from rendered. [8] By our disposition, supra, of the question presented by the ruling on appellant's said motion for judgment, while we have assumed and treated interrogatory No. 7 as though it were a proper interrogatory, we have not thereby intended to hold that it was proper in fact. It is insisted by appellee that the interrogatory is improper because it calls for a legal conclusion. It is true that an answer to such interrogatory to be correct and proper, within the meaning of the law, would involve the knowledge and application of the legal definition of proximate cause, and hence involves a legal conclusion. Dodge Mfg. Co. v. Krone-Cent. Dig. §§ 202-205; Dec. Dig. witter, 57 Ind. App. 190, 199-200, 104 N. E. 99; Terre, etc., Trac. Co. v. Hunter, 111 N. E. 344, 350; Southern R. Co. v. Utz, 52 Ind. App. 270, 275-277, 98 N. E. 375.

No reversible error being shown, the judgment below is affirmed.

(274 III. 87)

GEMMILL v. SMITH. (No. 10650.) (Supreme Court of Illinois. June 22, 1916.) 1. DEATH 30-ACTION AGAINST REPRESEN


A suit for negligence in causing death may be sustained by an administrator against the personal representative of the person whose negligence caused the death, if brought within the time limited by the law, as the cause of action does not abate by the death of the wrongdoer. [Ed. Note. For other cases, see Death, Cent. Dig. § 34; Dec. Dig. 30.]


Where an action for wrongful death was properly brought against two defendants, and a joint judgment could be recovered against both defendants if both were guilty of the wrong, no joint judgment could be rendered, after a defendant's death, against his personal representatives and the other defendant.


duplicity in alleging the facts showing that the Such plea was not subject to the charge of action did not survive against defendant as executrix, where, if the action survived, those facts were necessary under Abatement Act, § 25, to make the plea good.

99.] [Ed. Note.-For other cases, see Pleading,

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Clarence N. Goodwin, Judge.

Suit by Howard S. Gemmill, administrator of the estate of Hans Hansen, deceased, against Alanson D. Smith and the People's Gaslight & Coke Company, dismissed as to the defendant company, with summons after the death of Smith against Annie E. Smith, his executrix. Judgment for defendant dismissing the suit was affirmed by the Appellate Court, which granted a certificate of importance and an appeal. Affirmed.

Earl J. Walker, of Chicago, for appellant. Bulkley, More & Tallmadge, of Chicago, for appellee.

DUNN, J. The appellant, as administrator of the estate of Hans Hansen, brought suit in the superior court of Cook county, for negligently causing the death of his intestate, against Alanson D. Smith and the People's Gaslight & Coke Company. Smith alone was served and filed pleas. A year later he died. Summons was then served on the other defendant. Afterwards Smith's death was sug[Ed. Note. For other cases, see Judgment, gested, and an order was made that his execCent. Dig. §§ 423-425; Dec. Dig. 240.] utors be made defendants. The plaintiff dis3. ABATEMENT AND REVIVAL 73 DEATH missed his suit as to the People's Gaslight OF JOINT DEFENDANT - SURVIVAL AGAINST & Coke Company. Summons was served on RPRESENTATIVE-STATUTE. Annie E. Smith, as executrix, in Grundy county, where she resided, and was appointed executrix. She appeared in her own person

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Under Abatement Act (Hurd's Rev. St. 1915-16, c. 1) § 12, providing that where there are several defendants in an action, the cause

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