Swallow Coach Lines v. Cosgrove

• Decision Date: 31 May 1938
• Docket Number: 27059.
• Citation: 15 N.E.2d 92,214 Ind. 532
• Parties: SWALLOW COACH LINES, Inc., et al. v. COSGROVE.
• Court: Indiana Supreme Court

15 N.E.2d 92

214 Ind. 532

SWALLOW COACH LINES, Inc., et al. v. COSGROVE.

No. 27059.

Supreme Court of Indiana

May 31, 1938

Appeal from Superior Court, Marion County; Clarence E. Weir judge.

Rocap & Rocap, A. J. Rucker, and Chester Loughry, all of Indianapolis, for appellants.

Geo S. Stewart and A. J. Phillips, both of Indianapolis, for appellee.

SHAKE Judge.

This is an appeal from a judgment for personal injuries in favor of the appellee. The appellants herein and Clarence Wilkerson were originally named as defendants, the cause having been dismissed as to Wilkerson before trial. The errors assigned relate to the overruling of the separate demurrer of the appellant Pennsylvania Greyhound Lines of Indiana, Inc., to the complaint, and the overruling of the separate and several motion for a new trial of the appellants herein.

The complaint alleged that the appellant Pennsylvania Greyhound Lines held a certificate of convenience and necessity from the Public Service Commission of Indiana for the operation of a motor bus line for the transportation of passengers for hire between West Lafayette and Indianapolis; that prior to the plaintiff's injuries said appellant had entered into an arrangement with the appellant Swallow Coach Lines, under which the latter operated the bus that figured in the accident under the certificate issued to Pennsylvania Greyhound Lines; that appellee purchased a ticket from the agent of the appellant Pennsylvania Greyhound Lines for transportation from Lafayette to Indianapolis, and was advised by him that the same would be honored by the Swallow Coach Lines, and that the details of the arrangements between the two transportation companies were within their peculiar knowledge and unknown to the plaintiff. The memorandum was to the effect that the above allegations were insufficient to bind the demurring appellant. On the trial the lease contract between the two bus companies was introduced in evidence. It showed that the lessee undertook to operate busses upon schedules approved by the lessor and the Public Service Commission; that the lessor should receive 10 per cent. of the gross receipts from such operations and that the lessee should indemnify and save harmless the lessor from all claims for damages. The indeterminate permit constituted a contract between the Greyhound Lines and the State. One cannot escape the consequence of answering in damages growing out of an assumed responsibility by the defense that he has let the discharge of the obligation to another, over whom he has no control. Cleveland, etc., R. Co. v Simpson, 1915, 182 Ind. 693, 104 N.E. 301, 108 N.E. 9. In the case of Bates Motor Transport Lines, Inc., v. Mayer, Ind.Sup.1938, 14 N.E.2d 91, this court had before it a situation involving the same principles under somewhat different facts. In that case it was said (page 94): 'The appellant was the responsible licensed party to use the highways of the state, in an enterprise necessarily attended by some danger. It cannot avoid liability for injury to third parties by contracting with an irresponsible party. Such contract would be a fraud upon the public and state.' While there is no claim that Swallow Coach Lines was an irresponsible party, the application of the rule is the same as stated in the Bates Case. There was no error in overruling the demurrer to the complaint.

It is strenuously urged that the finding of negligence is not sustained by the evidence. The function of this court in reviewing a determination of fact, when there has been a trial on the merits by court or jury, is too well known for restatement. We have considered the evidence and find it sufficient. The bus upon which appellee was riding was proceeding along a paved highway. The defendant Wilkerson approached from the rear in another vehicle and undertook to pass, after sounding his horn. The vehicles collided, doing considerable damage to both and resulting in injuries to the appellee. Appellants contend that the undisputed evidence establishes that the accident was Wilkerson's fault. There was some showing that he was intoxicated and some evidence that the cars came together by reason of his cutting in front of the bus. If the jury had found that the accident was caused by these facts, we would not have disturbed the verdict. But there is likewise evidence from which the jury was justified in finding that the accident was due to the negligence of the driver of the bus, or to his negligence in combination with that of Wilkerson. A Lafayette police officer found tire tracks made by the wheels of the bus at the black line in the middle of the road at the place where the collision occurred. The bus body was shown to be 7 1/2 feet in width. Among the charges of negligence in the complaint was one that the bus driver failed to yield half the highway to Wilkerson. The jury could have found that to be true from the policeman's testimony, and it was corroborated by other evidence. Since we are precluded from weighing evidence we cannot say that there was a total lack of proof upon any assential issue.

Claim is made that the verdict, which was for $4,500, is excessive. To warrant a reversal on that ground it must appear that the damages assessed were so grossly and outrageously excessive as to induce the belief that they were the result of prejudice, partiality, or corruption. Ohio & Mississippi Ry. Co. v. Judy, 1889, 120 Ind. 397, 22 N.E. 252; Sturgeon v. Sturgeon, 1892, 4 Ind.App. 232, 30 N.E 805. The jury was composed of both men and women and the appellants say that perhaps the lady members thereof were inflamed by the introduction in evidence of a complaint for divorce previously filed by the appellee against her husband, in which she charged him with acts of extreme physical cruelty toward her. This evidence was offered by the appellants and if they thought it prejudicial to their cause they were under no compulsion to produce it. It is also asserted that the appellee possessed the gift of exaggeration and deception, and that the bruises which she claimed to have suffered may have resulted from manipulation of the flesh by herself or with the aid of others between the time of the accident and the time when she was first seen by a physician. This court cannot indulge in any such extra-evidential excursions into the realm of conjecture and speculation to set aside the verdict of twelve lawful jurors, which has also received the approval of an experienced trial judge. Much of the record before us is devoted to the testimony of skilled medical men relative to the nature and extent of appellee's injuries. The evidence upon that subject is highly conflicting, but that most favorable to the appellee would reasonably sustain an award in the amount allowed. Under the...