McCague v. New York, C. & St. L.R. Co.

• Decision Date: 26 February 1947
• Docket Number: 28266.
• Citation: 71 N.E.2d 569,225 Ind. 83
• Court: Indiana Supreme Court
• Parties: McCAGUE v. NEW YORK, C. & ST. L. R. CO.

71 N.E.2d 569

225 Ind. 83

McCAGUE v. NEW YORK, C. & ST. L. R. CO.

No. 28266.

Supreme Court of Indiana

February 26, 1947

Appeal from Blackford Court, Blackford County; William A. Burns judge.

Bonham & Emshwiller, of Hartford City and James J. Moran, of Portland, for appellant.

Victor H. Simmons, of Hartford City, and Harker & Irwin, of Frankfort, for appellee.

O'MALLEY, Judge.

The appellant, having received personal injuries and suffered property damage to his automobile as the result of a crossing accident, commenced this action in the Jay Circuit Court. There was a change of venue from the county and the matter was tried before a jury in the Blackford Circuit Court. The verdict of the jury was in favor of the defendant and no question is raised as to the sufficiency of the evidence to sustain the verdict of the jury on the question of contributory negligence, nor is it claimed that the evidence is such as to compel a conclusion different from that reached by the jury on the question of the negligence of the defendant. The only question, here raised, relates to the instructions given at the request of the appellee.

Under Rule 1-7 of this court, it is plainly stated that 'no error with respect to the giving of instructions shall be available as a cause for new trial or on appeal, except upon the specific objections made as above required.' Since the adoption of this rule this court has stated its import. Allman v. Malsbury, 1946, 224 Ind. 177, 65 N.E.2d 106.

The rule may seem harsh, but when consideration is given to the method of settling the instructions, the apparent harshness vanishes. The rule places a burden on the objector to point out to the court the specific reason for the refusal or modification requested, and since each attorney has the same opportunity to examine the instructions, as that held by the trial judge the court has the right to assume that all flaws in context or form of language, which have not been pointed out, are waived.

The first proposition set forth in appellant's brief complains of repetitious instructions. No objection of that kind was made before the instructions were given as provided by our rules; therefore, no questions on that claim can be here asserted. Allman v. Malsbury, supra.

The points under the next proposition stress the use of the words 'substantial evidence' in instruction numbered 11 tendered by the defendant below, appellee herein. The objection to this instruction was as follows:

'The Plaintiff objects to the Court giving Instruction #11 tendered by the defendant for the reason that this instruction refers to substantial evidence. In other words the plaintiff in order to make out a cause of action he would have to support the allegations of the complaint by substantial evidence. The plaintiff was only duty bound to establish the material allegations of his complaint by a fair preponderance of the evidence.'

The instruction contained the following sentence to which the objection was addressed:

'Substantial evidence of the facts which constitute the cause of action is necessary to the maintenance of a verdict.'

While the customary form of instruction used in most cases contains the statement that the party having the burden must sustain that burden by a fair preponderance of all the evidence given in the cause, it is also the rule that there must be substantial evidence, as contrasted with a mere scintilla, to support a decision or verdict in favor of the one with the burden. Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 669.

Evidence has been held by this court to be the means by which an event or occurrence is shown. Woodfill et al. v. Patton et al., 1881, 76 Ind. 575, 579, 40 Am.Rep. 269. See Evansville, Indianapolis and Cleveland Straight Line Railroad Co. v. Cochran, 1858, 10 Ind. 560, 561; Gates et al. v. Haw et al., 1898, 150 Ind. 370, 372, 50 N.E. 299. The word 'substantial' has been defined 'as meaning more than 'seeming or imaginary." Sylvester v. State, supra, 205 Ind. at page 632, 187 N.E. at page 670.

In other jurisdictions, it has been said that "* * * substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Marzacco v. Lowe, D.C.N.J. 1945, 58 F.Supp 900, 902, or that 'substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'' Minnesota Mining & Mfg. Co. v. Coe, 1940, 73 App.D.C. 146, 147, 118 F.2d 593, 594. In considering this word, we must examine it in its relation to the context. It is seldom that a word can be taken out of position and a definition applied without endangering the meaning of the sentence in which it has been used. Here we have applied the most common meaning to the word 'substantial.' True it has been used, on occasion, to mean something of a different nature, but the same thing could be said of the word 'preponderance,' and if taken from its proper context in an instruction the meaning of this word certainly is as varied as that of the word 'substantial.' We therefore are content to apply to the word 'substantial,' the meaning that has been given to it by this court and other courts of like jurisdiction or standing.

If in the instruction numbered 11, the court had substituted the definition of 'substantial evidence,' no complaint would be made on the grounds here claimed, because it would be plain that the rule on preponderance would not be affected. If the appellant desired that more information on this subject be given to the jury, he should have tendered an instruction containing the desired explanation. This instruction was not couched in words that we can approve, but the objection did not point out any defect that was not more 'seeming' than real.

Instruction numbered 10 informed the jury that the defendant beldow was bound under the law to cause the whistle to be blown three times when the train was not more than 100 rods and not less than 80 rods from the crossing, and to ring the bell continuously from the time of sounding the whistle until the engine had passed the crossing, and that the defendant was not required to give any other or different signals. The objection was that this instruction indicated that the full measure of the duty of the railroad was to give the statutory signals, but that in addition to that the company was obligated to use that degree of care that a reasonably prudent person would have used to avoid injury to the plaintiff. The instruction covered the giving of signals exclusively and did not attempt to define the quantum of care required from the servants of the railroad.

Instruction numbered 2 tendered by the plaintiff below was based upon the statute to which reference was made in instruction numbered 10. In plaintiff's instruction numbered 2 it was stated that if the jury found from a fair preponderance of the evidence that the railroad company employees failed to give the required signals; that there was freedom from contributory negligence on the part of the plaintiff; and that the failure to give such signals as outlined in the statute was the proximate cause of the injury to the plaintiff, then the plaintiff would be entitled to recover. In this instruction, there was no mention of the quantum of care necessary in the operation of the train. This instruction would certainly obviate any error in instruction numbered 10. If there was error in the giving of instruction numbered 10, it was invited error. There was no reason why an instruction of this kind should not have been given under the issues and evidence in this case. It did not cover the duty to exercise proper care in the operation of the train. It did state the requirements of the statute on the one subject of signals, which was but a part of the duty imposed upon the train operator to use due care under all the circumstances of the particular case. All other elements of that duty were amply covered by other instructions.

Instruction numbered 32 was an admonition as to the conduct of the jury in performing its duties. The objection was that it was argumentative. We do not so consider it. We realize that an instruction of this kind is commonly called a 'stock instruction,' and that it should be limited to a consideration of the evidence in the light of the law as given by the court. We do not intend to approve the instruction as given, but when it is examined in the light of the objection made in the court below, no error has been shown.

The appellant did not object to the last instruction given on motion of the court. It is claimed here that this instruction should have included a 'form of verdict' applicable to the second paragraph of complaint as well as the one tendered for use in regard to the first paragraph of complaint. The form offered was for the convenience of the jury. If it did not include a form applicable to the second paragraph of the complaint, it was the duty of the plaintiff to offer such form if it was desired that one be submitted for the permissive use of the jury.

Furthermore, it would be well to remember that the part of Rule 2-17 which requires that all instructions must be set forth in the brief, when error is predicated on the giving or refusal to give any instruction, was a part of our rules prior to the time of the adoption of Rule 1-7, and it certainly was not placed in the Rules as a limitation of the application of Rule 1-7. An instruction to which no objection is made, regardless of its contents, can in no way accentuate a claimed error in the giving of an instruction to which objection has been made. To hold otherwise would be to remove from Rule 1-7 all of its force and vitality.

After careful...