Louisville, N.A.&C. Ry. Co. v. Miller

• Decision Date: 10 May 1894
• Citation: 141 Ind. 533,37 N.E. 343
• Parties: LOUISVILLE, N. A. & C. RY. CO. v. MILLER.
• Court: Indiana Supreme Court

141 Ind. 533

37 N.E. 343

LOUISVILLE, N. A. & C. RY. CO.

v.MILLER.¹

Supreme Court of Indiana.

May 10, 1894.

Appeal from circuit court, Clinton county; John N. Hadley, Special Judge.

Action by George E. Miller against the Louisville, New Albany & Chicago Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. W. Kritzinger, E. C. Field, and Bayless & Guenther, for appellant. Ritter & Ritter, Wesner, McMath & Gard, and J. C. Farber, for appellee.

McCABE, J.

This was an action by the appellee against the appellant, in the court below, for damages on account of an alleged personal injury resulting from the alleged negligence of the appellant. Trial by jury; special verdict, assessing the damages at $12,500. Appellant's motion for judgment in its favor on the special verdict was overruled, to which it excepted. Its motion for a new trial, assigning as reasons therefor many errors in the trial leading up to the verdict, among which were that it was contrary to law, and not supported by sufficient evidence, was sustained, and a new trial was granted. On a second trial by jury, another special verdict was returned, assessing appellee'sdamages at $10,000. The court rendered judgment upon that verdict over a motion for a new trial. Such of the errors assigned here as are insisted on in the appellant's brief call in question the action of the trial court in overruling the appellant's motion for judgment on each of the special verdicts, and overruling appellant's last motion for a new trial.

The first question demanding consideration, in the natural order, is that on overruling the motion for judgment in appellant's favor on the first verdict. Appellant insists that if it was error to overrule that motion, and refuse to enter judgment in its favor on that verdict, this court ought to reverse the judgment recovered on the second trial, and set aside all the proceedings subsequent to that error, and order the trial court to render judgment upon that verdict in favor of the appellant. In support of this contention, appellant cites Bisel v. Hobbs, 6 Blackf. 479, where it is said: “So, where a verdict has been set aside, and a new trial granted, for reasons not recognized by the law, and, upon the second trial, judgment has been rendered in favor of the party obtaining the new trial, that judgment will be reversed, and the party that obtained the first verdict will be restored to his rights under that verdict.” Appellant also cites, to the same effect, Cummins v. Walden, 4 Blackf. 308. The case at bar is wholly different from those just cited. There, the new trial had been granted against the party complaining. Here, the new trial was granted in favor of, and in compliance with the request and motion of, the party complaining. In that case, the new trial had been granted for a cause unknown to the law,-a cause for which the law did not authorize a new trial. In this case, all the numerous causes assigned in the motion for the new trial granted were such as the law authorized and required. Appellant also cites Brannon v. May, 42 Ind. 102, to the effect that moving for judgment on the verdict did not cut off the motion for a new trial, and on this case seeks to build the theory that therefore the motion for a new trial did not waive the motion for judgment on the verdict. That case, however, does not, as counsel assert, hold that the motion for a new trial is no waiver of the previous motion for judgment on the verdict. All this court there held was: “We think, where there is a general verdict, with special findings by the jury in answer to questions propounded to them, the party against whom the general verdict is returned may move for judgment in his favor on the special findings, notwithstanding the general verdict, without losing his right to move for a new trial in case his motion for judgment should be overruled.” That is not the question here. The question here is, what effect on appellant's exception to the overruling of its motion for judgment did the action of the trial court have, in granting appellant's motion for a new trial? It asks us to set aside and reverse all the proceedings subsequent to the overruling its motion for judgment on the special verdict. These proceedings are the result of its own motion, because there would have been no new trial if it had not asked for the same. It was said in one of the cases cited by appellant on this point, namely, Cummins v. Walden, supra, that “it would be giving the plaintiff too great an advantage, to permit him to take the chance of a verdict, and, when it is lost, to relieve him from the verdict and give him a chance with another jury, merely because the evidence against his claim was stronger on the first trial than he expected it would be.” The appellant deliberately took the chances of a more favorable verdict on the second trial than that of the first, when it moved the court to grant it a new trial; and now that the result is a disappointment is no reason why it should be relieved from the consequences of its own act. Even though the first verdict did not find facts enough to support a judgment in favor of the plaintiff, thereby entitling defendant to judgment on motion in its favor on such verdict, had it stood by its motion therefor, yet that verdict has been set aside, and a new trial granted, at its own instance and request. Before appellant's present request for judgment in its favor on that verdict can be granted, such verdict must be restored to life,-to its condition before it was set aside, because, as was said by this court in State v. Templin, 122 Ind., at page 238, 23 N. E. 697: “The actual granting of a new trial supersedes the effect of the former trial, or wipes out the verdict. No judgment can be rendered upon it;” citing Hill. New Trials, 74; Edwards v. Edwards, 22 Ill. 121;Hidden v. Jordan, 28 Cal. 301. Before that verdict can be relieved of this effect of being wiped out, the order granting the new trial, producing that effect, must be reversed. That can only be done by making it appear affirmatively in the record that the order was erroneous, and that it was, or probably was, prejudicial to the party complaining. Harter v. Eltzroth, 111 Ind. 159, 12 N. E. 129;New v. New, 95 Ind. 366;Cline v. Lindsey, 110 Ind. 337, 11 N. E. 441. It must further appear that appellant objected or excepted to the order granting the new trial. A ruling without objection or exception thereto by the complaining party cannot be available error. Swan v. Clark, 80 Ind. 57;Grubbs v. Morris, 103 Ind. 166, 2 N. E. 579;Leyner v. State, 8 Ind. 490; Elliott, App. Proc. § 624, and authorities cited. But, instead of showing an objection or exception to the ruling of the court by which the verdict was wiped out, appellant actually invited, asked for, and procured the ruling to be made. Judge Elliott, in his Appellate Procedure, at section 626, says: “A party who expressly asks that a designated ruling be made cannot avail himself of that ruling on appeal, although it may be material, and may be exhibited by the record. What a party expressly asks cannot be made available by him, as error, without a violation of the plainest principles of the law.” See the numerous authorities cited to this section. We therefore conclude that, by procuring the trial court to set aside the first verdict and grant a new trial, the appellant waived its right to insist on any error in overruling its motion for judgment in its favor on such verdict. For that reason, we have not examined the first verdict, to see whether appellant's motion for judgment thereon in its favor was well taken or not, in the event it had stood by such motion. It might have made the error, if such there was, in overruling the motion, available by objection to any action of the court inconsistent with judgment in its favor on such verdict.

The second special verdict contains the following facts: “That on the 27th day of January, 1890, the plaintiff, at the town of Terhune, entered into a passenger car of the defendant, and seated himself upon a seat provided by the defendant for the use of passengers in said car, for the purpose of being carried from said town of Terhune to the said city of Indianapolis, and then and there paid to the conductor of said cars and train the regular fare or charge of the defendant for carrying a passenger from the said town of Terhune to the said city of Indianapolis. That at said date, at a point about one hundred and seventy-eight feet north of a trestle over what is known as ‘Williamson's Run,’ about three-fourths of a mile north of the town of Carmel, in the county of Hamilton, in the state of Indiana, and near the middle of a three-degree curve in the track of the defendant's railroad, the left or east rail of said track had been raised by placing blocks of wood, called ‘shims,’ from one-eighth of an inch to one inch in thickness, on seventeen consecutive ties under said left or east rail. That from one-fourth to one-third of said ties under said rail were rotten at a point where the spikes were driven into said ties. That all of said ties were more or less decayed or defective. That said spikes had been raised for the purpose of putting said blocks or shims under said rail on said ties, and then driven back into the same holes from which they had been drawn. That from one-fourth to one-third of said ties under said rail were too rotten to hold said spikes. That on the date aforesaid, and while the plaintiff was a passenger on said train as aforesaid, and sitting in a seat in defendant's car, for the purpose of being carried from the said town of Terhune to the said city of Indianapolis, when said train was on the curve aforesaid at a point one hundred and seventy-eight feet from the north side of said trestle, as herein described and located, and while said train was running at the rate of thirty miles an hour, and when the trucks under said...