19 N.E. 331 (Ind. 1889), 13,505, Stringer v. Frost

Docket Nº:13,505
Citation:19 N.E. 331, 116 Ind. 477
Opinion Judge:Mitchell, J.
Party Name:Stringer v. Frost
Attorney:M. L. Graff, for appellant. J. B. Harper and W. G. Colerick, for appellee.
Case Date:January 08, 1889
Court:Supreme Court of Indiana
 
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Page 331

19 N.E. 331 (Ind. 1889)

116 Ind. 477

Stringer

v.

Frost

No. 13,505

Supreme Court of Indiana

January 8, 1889

From the Allen Superior Court.

The judgment is affirmed, with costs.

M. L. Graff, for appellant.

J. B. Harper and W. G. Colerick, for appellee.

OPINION

Page 332

Mitchell, J.

Action by Harriet Frost against Elza T. Stringer and his minor son, Frederick O. Stringer, to recover damages alleged to have been wrongfully inflicted by the defendant Frederick O. Stringer upon the plaintiff, in negligently riding his father's horse upon her while she was crossing a public street in the city of Fort Wayne.

The jury returned a general verdict in favor of the father, and against Frederick O. Stringer, and they also returned answers to special interrogatories submitted to them by the parties respectively.

[116 Ind. 478] On the appellant's behalf, it is contended that the answers to special interrogatories make it apparent that the plaintiff was guilty of contributory negligence, and that it was, therefore, error for the court to overrule his motion for judgment notwithstanding the general verdict.

It is doubtless the rule in cases of this nature, that a recovery will not be sustained whenever there is negligence on the part of the plaintiff contributing directly to, or which was a proximate cause of, the occurrence from which the injury arises, and that the burden is upon the plaintiff to show that the injury is not attributable to any want of proper care on his part. Murphy v. Deane, 101 Mass. 455. We do not, however, concur in the view that this rule was violated by overruling the appellant's motion for judgment.

The general verdict affirmed the defendant's negligence, and that the plaintiff was herself in the exercise of due care, and it is too well settled to justify the citation of authority, that unless the facts specially found are in irreconcilable conflict with the general verdict, the general verdict must control.

It would serve no useful purpose to set out the interrogatories and the answers of the jury. It is quite sufficient to say they show beyond question that the defendant was culpably negligent, in that at the time of the collision he was riding his horse at an improper rate of speed along a much used public street in a populous city, and at the same time looking in another...

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