Chicago, T.H.&S.E. Ry. Co. v. Collins, 11657.
| Decision Date | 06 February 1924 |
| Docket Number | No. 11657.,11657. |
| Citation | 142 N.E. 634,82 Ind.App. 41 |
| Parties | CHICAGO, T. H. & S. E. RY. CO. v. COLLINS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Jackson County; James A. Cox, Judge.
Action by Mattie E. Collins against the Chicago, Terre Haute & Southeastern Railway Company and another. Judgment for plaintiff against defendant named only, and it appeals. Affirmed.
There was evidence that both bones of the lower arm were broken and that part of one bone leading into the wrist joint was broken off; that the fracture had affected the use of the arm 50 per cent.; that it would not get any better and might get worse. Plaintiff testified that it was in a splint for five weeks, and pasteboards two weeks longer; that it was painful all the time and still hurts; that she could not lift anything heavy; that it never gave her any trouble before the injury and she was able to do her own work at that time, but could not do all of it since the injury.
This action was instituted by Mattie E. Collins against the Chicago, Terre Haute & Southeastern Railway Company and also the Chicago, Milwaukee & St. Paul Railway Company to recover damages for personal injuries alleged to have resulted from the negligence of the defendants. The following is the body of the complaint:
“That on or about the 23d day of February, 1921, the defendant Chicago, Terre Haute & Southeastern Railway Company was, and for a long time prior thereto had been, engaged in operating a line of railway in and through the city of Seymour, Jackson county, Indiana, where it maintained a passenger station for the receipt and discharge of passengers who had occasion to use its line of railway; that its said passenger station was located north and east of another passenger station owned and used for the same purpose by the Baltimore & Ohio Railroad Company; that said defendant's passenger station was located east of Ewing street in said city, which is a street leading northward from said Baltimore & Ohio passenger station; that prior to said date the defendant, Chicago, Terre Haute & Southeastern Railway Company, had wrongfully constructed one or more tracks across said Ewing street, consisting of crossties laid in the ground and T-rails fastened thereon; that, although said defendant well knew that such Ewing street was in general use by passengers going to and coming from such Baltimore & Ohio station, yet it negligently and carelessly so laid the rails in constructing its said tracks, contrary to law, across said street that they protruded one or more inches above the surrounding surface of said street, thereby making it very dangerous for persons to use said street in going to and from such Baltimore & Ohio passenger station, in that the protruding rails were likely to catch the feet of such passengers and trip them and cause them to fall down upon the hard surface of such street.
That on said date, plaintiff had alighted from a train on said Baltimore & Ohio Railroad at its said station, and she then proceeded northward to her destination over and along Ewing street, all of the time using due care for her own safety and protection; that plaintiff is 56 years of age and has good eyesight for a woman of her age; that at said time it was dark, or nearly so, and plaintiff was unable to see such protruding rail; that in passing over the same, the toe of her shoe caught upon such protruding rail and tripping her caused her to fall with great force and violence upon the hard surface of said street, breaking her left arm at the wrist, jarring her entire body, and scratching and bruising her arms, shoulders, face, chest and legs.
That as a result of her said injuries she was confined to her home and bed for - weeks, and has suffered much pain and anguish; that her digestion has been impaired and her general health weakened and her nervous system has been broken down and injured; that she has not yet recovered the use of her arm and she will never be able to have good use thereof.
That since said injuries were sustained as aforesaid, the defendant Chicago, Milwaukee and St. Paul Railway Company has succeeded to all the property and rights of its codefendant herein and has assumed all its obligations and liabilities; that said last-named defendant has become bound for the payment of any sums due plaintiff because of her said injuries.
Wherefore plaintiff demands judgment against the defendants in the sum of ten thousand dollars.”
A demurrer to the complaint for want of facts was overruled. Each defendant filed answer in general denial. The action was dismissed as to the defendant Chicago Milwaukee & St. Paul Railway Company. Trial resulted in a verdict for $2,000. With their verdict the jurors returned answers to five interrogatories as follows:
“No. 1. Did the Southern Indiana Railway Company construct and lay the track across Ewing street in the city of Seymour, of which plaintiff complains? Answer: Yes.
No. 2. Did the Chicago, Terre Haute & Southeastern Railway Company construct or lay the track across Ewing street in the city of Seymour of which plaintiff complains? Answer: No.
No. 3. Was the railway track across Ewing street in the city of Seymour of which plaintiff complains constructed and laid in pursuance of authority granted by an ordinance enacted by the common council of the city of Seymour on May 4, 1899? Answer: Yes.
No. 4. Was the railway track across Ewing street in the city of Seymour of which plaintiff complains constructed and laid in conformity to the grade of said Ewing street as fixed and established by the common council of said city of Seymour? Answer: No.
No. 5. Was the railway track across Ewing street in the city of Seymour, Indiana, of which plaintiff complains, laid in such manner as would afford security for life and property at such crossing? Answer: No.”
A motion for judgment on the interrogatories, notwithstanding the verdict, was overruled. A motion for a new trial was overruled. The errors assigned challenge the action of the court in overruling (1) the demurrer; (2) the motion for judgment on the interrogatories; and (3) the motion for a new trial. Judgment on the verdict.
W. F. Peter, Jr., of Chicago, Ill., and Montgomery & Montgomery, of Seymour, for appellant.
Clarke & Clarke, of Indianapolis, for appellee.
DAUSMAN, P. J. (after stating the facts as above).
The first error assigned has been expressly waived.
[1] Under the second assignment the appellant contends that a recovery is absolutely inhibited by the old rule that a litigant will not be permitted to recover on any “theory” other than the one stated in his pleading. To sustain the contention counsel proceed to put their own construction upon the complaint. They say that the plain “theory” of the complaint is that the track was originally constructed by the appellant, and that the original construction of the track was wrongful. They insist that the averment that the track was wrongfully constructed across Ewing street means that it was originally constructed without lawful authority, and that the complaint cannot be legitimately construed to charge negligence in the maintenance of the track, or in suffering the track to remain in the condition in which it was originally constructed.
The answers to the first and second interrogatories show that the track was originally constructed by the Southern Indiana Railway Company, a company not named in the complaint. The answer to the third interrogatory shows that the Southern Indiana Railway Company was duly authorized by the common council of the city of Seymour to construct its track across Ewing street.
From the foregoing premises counsel conclude that, while the complaint is on the dual “theory” that the original construction was negligent and unauthorized, the answers to the interrogatories conclusively show that the verdict rests on an entirely different “theory,” viz. negligence in the maintenance.
Is the question presented by this contention involved in the motion for judgment on the interrogatories? The act which authorizes the submission of interrogatories to a jury is not clear. Acts 1897, p. 128; section 572, Burns' Ann. St. 1914. It is indefinite and incomplete. It does not fit other provisions of the Code (as the Code was at the time this act became effective), and it is difficult, if not impossible, to determine what provisions of the Code, if any, it has repealed by implication. The use and purpose of the interrogatories, the force and effect to be given them, when answered, are not stated in the act. The practice which has been indulged under the act, as evidenced by the decisions, is confusing and baffling. It has often been held, however, that a motion for judgment on the answers to interrogatories notwithstanding the verdict, raises the question whether or not the answers to the interrogatories are in irreconcilable conflict with the verdict. Illinois Car, etc., Co. v. Brown, 67 Ind. App. 315, 326, 116 N. E. 4. But counsel are attempting here to use that...
To continue reading
Request your trial