The Louisville, New Albany and Chicago Railway Company v. Stommel

Citation25 N.E. 863,126 Ind. 35
Decision Date14 November 1890
Docket Number14,103
PartiesThe Louisville, New Albany and Chicago Railway Company v. Stommel
CourtSupreme Court of Indiana

From the Lake Circuit Court.

Judgment reversed, with costs.

G. R Eldridge, G. W. Friedley, T. L. Sullivan, A. Q. Jones and W C. McMahon, for appellant.

J. W Youche, for appellee.

OPINION

Berkshire, C. J.

This was an action instituted by the appellee against the appellant to recover damages for two horses killed and a wagon destroyed because of the alleged negligence of the employees of the appellant in running and operating a locomotive and train of cars of which it was the owner, over and along its line of railroad.

The appellee has filed no brief, and, therefore, we are without the benefit of an argument in support of the various rulings of the trial court complained of.

The case was put at issue by an answer in general denial after a demurrer had been addressed to the complaint and overruled. The issue joined was submitted to a jury, who, after hearing the evidence, returned a verdict for the appellee, and returned therewith certain interrogatories propounded to them with their answers thereto.

The appellant moved for a judgment in its favor non obstante, because of the answers to the interrogatories. The court overruled this motion and the appellant then filed a motion for a new trial, which was also overruled and judgment rendered for the appellee. To all of these adverse rulings of the court the appellant reserved exceptions.

Several errors have been assigned to which we need not make special reference, for the reason that the questions considered will sufficiently appear in the opinion without such reference.

We regard the second paragraph of the complaint (it being the one upon which the verdict depends) as good. It alleges facts sufficient to show negligence on the part of the appellant, and contains the usual negative averment that there was no contributory negligence on the part of the appellee. This renders the complaint good, unless it affirmatively appears, notwithstanding these allegations, that there was an absence of negligence on the appellant's part, or the presence of negligence on the part of the appellee, and neither is made to appear.

The answers of the jury to the interrogatories are not so inconsistent with the general verdict as to override it, hence there was no error in overruling this motion non obstante.

This brings us to the motion for a new trial. Certain questions are raised by the motion for a new trial because of the rejection of certain testimony offered by the appellant.

As the judgment will have to be reversed for other reasons, and as these questions may not arise on another trial, we do not stop to consider them.

The appellant requested certain instructions, which were refused by the court.

The instructions are fourteen in number, and it was the duty of the court to give all of them, or their equivalent, from one to twelve inclusive, except the tenth and twelfth. We have not considered the thirteenth and fourteenth, for the reason that counsel for appellant have waived their consideration by failing to call attention thereto in their brief.

The tenth did not state the law correctly in this particular: "That the defendant's train, which is charged did the injury, was at the time running twenty, thirty, or forty miles an hour, constitutes no element of negligence; or under the other facts proven shows the defendant, or its servants, to have been wilfully careless of the consequences of such running."

The language of the instruction is confused, and was calculated to mislead the jury; besides, it was not a question in the case as to whether the appellant's servants were guilty of wilful conduct.

Whether the rate of speed at which the train was running constituted an element of negligence was a question of fact for the jury, under all the circumstances of the case, and not a question of law for the court.

In the twelfth instruction the court was asked to instruct the jury that, under certain circumstances, positive testimony given by one witness is entitled to more weight than negative testimony given by another. The credibility of witnesses, and the weight to be given to their testimony, are always questions for the jury.

The instructions of the court substantially covered the instructions asked by the appellant, numbered 4, 6 and 11, and we need not, therefore, spend any time with those instructions.

By the first instruction the court was requested to say to the jury that when a person is injured while crossing a railroad track, either in person or property, by a collision with a train, the fault is prima facie his own, and he must affirmatively show that his fault or negligence did not contribute to the injury to entitle him to a recovery; and that the appellee was not entitled to recover unless he made it appear by a fair preponderance of evidence that his servant, William Stommel, was not, under the circumstances, guilty of contributory negligence.

This instruction states the law correctly. The court stated, in a general way, that the appellee was required, to entitle him to recover, to show by a preponderance of evidence negligence on the part of the company, and its absence on the part of his servant, but the appellant had the right to have the law stated more strongly in its favor. The jury might...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT