Cleveland, C., C.&I. Ry. Co. v. Wynant

Citation134 Ind. 681, 34 N.E. 569
Case DateJune 07, 1893
CourtSupreme Court of Indiana

134 Ind. 681
34 N.E. 569

CLEVELAND, C., C. & I. RY. CO.
v.
WYNANT.

Supreme Court of Indiana.

June 7, 1893.


Appeal from circuit court, Madison county; M. A. Chipman, Judge.

Action by Harriet Wynant against the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

[34 N.E. 570]


John T. Dye, William H. Dye, M. S. Robinson, and John W. Lovett, for appellant.
H. D. Thompson and O. L. Henry, for appellee.

McCABE, J.

Appellee sued the appellant for a personal injury alleged to have been received by her through the negligence of appellant. Issue, trial by jury, verdict for plaintiff for $3,570, upon which appellee had judgment over a motion for a new trial. The errors assigned are (1) that the court erred in overruling a demurrer to the complaint; (2) in overruling the motion for a new trial. The complaint was in two paragraphs, and they are the same they were when the case was here on two other appeals. Both paragraphs were held good on demurrer on the first appeal. 100 Ind. 160;Id., 114 Ind. 525, 17 N. E. Rep. 118.

It is settled law that a ruling in a case on a former appeal in this court is the law of that case on the point ruled throughout all its subsequent stages until its final determination, and a complaint once held good on one appeal cannot thereafter, in another appeal of the same case, be questioned. Mason v. Burk, 120 Ind. 404, 22 N. E. Rep. 119; Board v. Jameson, 86 Ind. 154;Gerber v. Friday, 87 Ind. 366;Jones v. Caster, 96 Ind. 307. Therefore the first assignment of error is not well taken.

Among the reasons for a new trial was that the verdict was not sustained by sufficient evidence. As will be seen by reference to 100 Ind. 160, the plaintiff was injured by the team of horses drawing the vehicle in which she and her husband were riding becoming frightened and running away, at a place where the highway on which they were traveling crossed the railroad track of the appellant, resulting in the breaking of appellee's arm. The wrong with which the appellant was charged was negligently leaving one of its box cars standing on its track upon and partially across said highway, which extended 24 feet upon said highway, and to the edge of that part then used by the public as their route of travel, which caused the said team of horses, and each of them, to become frightened aud wholly unmanageable, and to run away, overturning said wagon, thereby breaking her arm, without fault or negligence on her part. The appellant insists that the evidence is not sufficient to support the verdict, in that it fails to establish that the box car caused the fright of the horses, and caused them to become unmanageable and run away. On the other hand, it is contended that this court cannot reverse the judgment on the evidence alone if it tends to support the verdict. It is claimed by appellee's counsel that, if the evidence tends to support the verdict, this court cannot reverse the judgment on the evidence. This is not strictly correct. That expression has been used in a long line of cases by this court, but evidently not intending that the language should be construed in its literal signification. Lane v. Brown, 22 Ind. 239;Shank v. State, 25 Ind. 207;Atkinson v. Martin, 39 Ind. 242;Railroad Co. v. Grove, 47 Ind. 133;Wingate v. Neidlinger, 50 Ind. 520; Simpson v. Payne, 58 Ind. 431;

[34 N.E. 571]

Durrah v. Stillwell, 59 Ind. 139;Applegate v. Moffitt, 60 Ind. 104; Railroad Co. v. Snapp, 61 Ind. 303; Railroad Co. v. Husselman, 65 Ind. 73; Martin v. Cauble, 72 Ind. 67; Railroad Co. v. Tipton, 101 Ind. 197;Crocker v. Hadley, 102 Ind. 416, 1 N. E. Rep. 734; Secor v. Skiles, 106 Ind. 98, 5 N. E. Rep. 897; Railway Co. v. Savage, 110 Ind. 156, 9 N. E. Rep. 85; Cowger v. Land, 112 Ind. 263, 12 N. E. Rep. 96; Insurance Co. v. Yung, 113 Ind. 159, 15 N. E. Rep. 220; Isler v. Bland, 117 Ind. 457, 20 N. E. Rep. 303. It seems quite unreasonable to say that, if the evidence does nothing more than tend to support the verdict, this court cannot disturb it. Evidence is always admissible that tends to support or prove the issue on the part of the party offering it, however slight that tendency may be; and it is never required as a condition to the introduction of offered evidence that it must be sufficient to establish the issue for the party offering it. If its tendency is in that direction it is competent. There may be several facts essential to establish or prove the issue on behalf of the plaintiff in a given case, and there may have been evidence sufficient to prove one of them only, and yet on such evidence a verdict could not stand on appeal in this court, though such evidence tends to support it. While it tends to support the verdict, it is not sufficient, because it does not prove enough, even though wholly uncontradicted. In Martin v. Cauble, supra, the expression is: “This court will not disturb the finding of the lower court on a disputed question of fact if there is evidence in the record on which the finding can stand.” In Butterfield v. Trittipo, 67 Ind., at page 342, it is said: “While this court may not properly weigh evidence, nor attempt to determine its preponderance either for or against the finding below, it is still the duty of this court, as we understand our duty, to carefully examine the evidence, when the point is made with a view of ascertaining whether or not there has been a failure of evidence on any material question. When the record discloses such a failure of evidence, it is as much the duty of this court to reverse the judgment below, on that ground, as for any other error.” In Swales v. Southard, 64 Ind., at page 559, it is said: “There was legal evidence introduced on the trial, tending, and sufficient, to sustain the verdict of the jury.” In Grant v. Westfall, 57 Ind. 127, it is said: “The only question is whether or not the verdict *** is sustained by sufficient legal evidence. We think it is.” In Watt v. DeHaven, 55 Ind., at page 130, it is said: “We think the evidence *** amply sufficient to sustain the finding of the court below; but, if we thought otherwise, we would not *** disturb the finding on the mere weight of the evidence.” And in Railroad Co. v. Taffe, 37 Ind., at page 369, it is said: “When there is legal evidence that conduces to prove every material fact in the case, we must,” etc.

It was never intended by the expression that “the verdict on appeal cannot be disturbed in this court when the evidence tends to support it,” to hold that less than sufficient legal evidence to establish the issue or the truth of the verdict or finding would suffice, excluding from consideration all evidence conflicting therewith. Where the sufficiency of the evidence to support a verdict or finding is brought in question in this court on appeal, the question presented is very much like, and very nearly the same as, that presented by a demurrer to the evidence in the trial court. In Willcuts v. Insurance Co., 81 Ind., at page 303, this court said: “First. A demurrer to the evidence admits all facts of which there is any evidence, and all inferences which can be logically drawn from the evidence. Second. All reasonable and natural inferences which may be drawn from the evidence are admitted; but forced and unnatural ones are not. The court will also, on the argument of the demurrer, make every inference of fact in favor of the party *** which the jury might, with the least degree of propriety, have inferred, but they ought not to make forced inferences. Third. In considering the evidence demurred to, the courts will not weigh it, to determine whether a fact of which there is any evidence has or has not been proved; nor will they consider such evidence as is favorable to the demurring party if there be any opposing evidence. So, if the evidence conflict, the party demurring must admit that of his adversary to be true so far as it conflicts with his own.” In Stockwell v. State, 101 Ind., at page 5, it is said: “That upon such demurrer the court will infer from the evidence every conclusion that the jury could reasonably have inferred from it; that all the facts of which there is any evidence are admitted, and all conclusions which can fairly and logically be deduced from those facts.” The only difference in the two cases is, on a demurrer to the evidence the demurring party by his demurrer admits the evidence and logical inferences deducible therefrom to be true in favor of the opposite party, while on appeal the appellant does not admit the evidence and logical inferences therefrom to be true, but this court considers them true.

So, too, on an appeal here, the evidence must more than merely tend to support the verdict; it must be such as that, if every fact proven were admitted to be true, and every fact which could be logically and reasonably deduced therefrom were also admitted to be true, and that these facts embraced every fact essential to the existence and truth of the verdict, then, and not till then, is the evidence sufficient to support the verdict. No matter how great the contradictions to that evidence, if it comes up to the requirement above specified, it is sufficient to support the verdict in this court on appeal. If it does not, it is not sufficient. It is very earnestly insisted that the evidence is not sufficient, in that it fails to show that the appellant placed the box car on its track so as to extend into the highway. It is insisted that it might have been the work of intermeddlers. But the fact was proven beyond dispute that the car was there. The inference that somebody put it there was a reasonable and logical one, and one the jury had a right

[34 N.E. 572]

to deduce from...

To continue reading

Request your trial
58 practice notes
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...a suspicion or amount to a scintilla. Sullivan v. State [1927], 200 Ind. 43, 47, 161 N.E. 265; Cleveland, etc., Ry. Co. v. Wynant [1893], 134 Ind. 681, 686, 34 N.E. '* * * We use the word 'substantial' as meaning more than 'seeming or imaginary." Sylvester v. State, 1933, 205 Ind. 628, 631,......
  • Cleveland, C., C. & St. L. Ry. Co. v. Clark, No. 7,255.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1912
    ...concurred in producing such injury Board of Commissioners v. Mutchler, 137 Ind. 140, 36 N. E. 534;Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569;Board of Commissioners v. Sisson, 2 Ind. App. 311, 28 N. E. 374. [4] The collision was caused by the train passing over the crossin......
  • Spiking v. Consolidated Ry. & Power Co., 1874
    • United States
    • Supreme Court of Utah
    • January 25, 1908
    ...at the proper time waives the error." Citing Jones on Evidence, sec. 898. (Huges v. Ward, 38 Kan. 452, 16 P. 810; Railroad v. Wynant, 134 Ind. 681, 34 N.E. 569; Dallmeyer v. Dallmeyer [Pa.], 16 A. 72; Railroad v. Kern, 9 Ind.App. 505, 36 N.E. 381; Perkins v. Quarry Co. (Com. Pl.), 32 N.Y.S.......
  • Cent. Indiana Ry. Co. v. Wishard, No. 8191.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 1914
    ...street at the time of the collision. This was sufficient to warrant the giving of the instruction. Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681, 687, 34 N. E. 569. We might add that the answers to the interrogatories convince us that, even if the instruction could be said to be subject t......
  • Request a trial to view additional results
58 cases
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...a suspicion or amount to a scintilla. Sullivan v. State [1927], 200 Ind. 43, 47, 161 N.E. 265; Cleveland, etc., Ry. Co. v. Wynant [1893], 134 Ind. 681, 686, 34 N.E. '* * * We use the word 'substantial' as meaning more than 'seeming or imaginary." Sylvester v. State, 1933, 205 Ind. 628, 631,......
  • Cleveland, C., C. & St. L. Ry. Co. v. Clark, No. 7,255.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1912
    ...concurred in producing such injury Board of Commissioners v. Mutchler, 137 Ind. 140, 36 N. E. 534;Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569;Board of Commissioners v. Sisson, 2 Ind. App. 311, 28 N. E. 374. [4] The collision was caused by the train passing over the crossin......
  • Spiking v. Consolidated Ry. & Power Co., 1874
    • United States
    • Supreme Court of Utah
    • January 25, 1908
    ...at the proper time waives the error." Citing Jones on Evidence, sec. 898. (Huges v. Ward, 38 Kan. 452, 16 P. 810; Railroad v. Wynant, 134 Ind. 681, 34 N.E. 569; Dallmeyer v. Dallmeyer [Pa.], 16 A. 72; Railroad v. Kern, 9 Ind.App. 505, 36 N.E. 381; Perkins v. Quarry Co. (Com. Pl.), 32 N.Y.S.......
  • Cent. Indiana Ry. Co. v. Wishard, No. 8191.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 1914
    ...street at the time of the collision. This was sufficient to warrant the giving of the instruction. Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681, 687, 34 N. E. 569. We might add that the answers to the interrogatories convince us that, even if the instruction could be said to be subject t......
  • Request a trial to view additional results

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