Terre Haute, I.&E. Traction Co. v. Weddle

• Decision Date: 26 March 1915
• Docket Number: No. 22481.,22481.
• Court: Indiana Supreme Court
• Parties: TERRE HAUTE, I. & E. TRACTION CO. v. WEDDLE.

183 Ind. 305

108 N.E. 225

TERRE HAUTE, I. & E. TRACTION CO.

v.WEDDLE.

No. 22481.

Supreme Court of Indiana.

March 26, 1915.

Appeal from Circuit Court, Johnson County; Wm. E. Dupree, Judge.

Action by Elmire C. Weddle, administratrix of Thomas Weddle, deceased, against the Terre Haute, Indianapolis & Eastern Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

D. E. Watson, of Martinsville, and L. Ert Slack and W. H. Latta, both of Indianapolis, for appellant. Homer L. McGinnis and James V. Mitchell, both of Martinsville, for appellee.

SPENCER, J.

This is an action by appellee, as administratrix of the estate of her husband, Thomas Weddle, to recover damages for his death, alleged to have been caused through negligence on the part of appellant. The first paragraph of amended complaint is based on the Employers' Liability Act of 1911 (Laws 1911, page 145; section 8020a, Burns 1914), and alleges that appellant's servants negligently caused a collision between one of its passenger cars and a work train on which decedent, at the time of his injury, was engaged in performing the duties of his employment as a section foreman in the service of appellant. The second paragraph of complaint, also based on the act of 1911, was dismissed by appellee at the close of the evidence. The third paragraph charges negligence on the part of appellant's train dispatcher in ordering the work train to run from Martinsville to Riverside, Ind., without giving it sufficient time in which to reach the siding at Riverside before the passenger car should reach that point; also in failing to notify the motormen and conductors of said car and work train of the approach and operation of each.

A trial by jury resulted in a verdict and judgment in favor of appellee, and this appeal follows. The only assignment of error challenges the action of the lower court in overruling appellant's motion for a new trial.

[1] Appellant challenges the constitutionality of the Employers' Liability Act of 1911, although recognizing the decision of this court in Vandalia R. Co. v. Stilwell, 104 N. E. 289, and has presented an earnest and able argument in support of its contention. As was conceded in the Stilwell Case, the question is one which is not entirely free from all doubt; but after further consideration of that decision, and of the authorities therein cited, as well as those cited in the case now before us, we see no reason to depart from our previous holding. This conclusion disposes of the alleged errors in instructions 15, 16, and 18, given by the court of its own motion, and its refusal to give instruction 7, tendered by the appellant.

[2] Instruction 4, given by the court, told the jury that:

“By a preponderance of the evidence is meant the weight of the evidence. The evidence given upon any fact in issue which convinces you most strongly of its truthfulness is of the greater weight, irrespective of the number of witnessesthat have testified to such fact upon one side or the other, or of the quantity of evidence that may have been introduced to support one side or the other of such fact in issue.”

This is attacked on the ground that it wholly eliminates the element of the number of witnesses or the quantity of evidence on any given point; but, fairly construed, we cannot agree that it is open to such interpretation, and in any event there is not a suggestion that the instruction tended to discriminate in favor of or against either party to the action.

[3] Complaint is made of the refusal of the court to give instructions...