Baltimore & O.R. Co. v. Reyher
| Decision Date | 18 December 1939 |
| Docket Number | 27306. |
| Citation | 24 N.E.2d 284,216 Ind. 545 |
| Court | Indiana Supreme Court |
| Parties | BALTIMORE & O. R. CO. v. REYHER et al. |
Appeal from Superior Court, Porter County; Mark B. Rockwell judge.
Bomberger Peters & Morthland, of Hammond, for appellant.
Hodges Ridgely & Davis, of Gary, for appellees.
This is an appeal from a judgment against the Baltimore & Ohio Railroad Company for the death of Christopher M. Reyher, resulting from a collision of an automobile driven by the decedent with appellant's train at a railroad crossing in the city of Gary.
The amended complaint named the railroad company, the appellee Paul Kleeman, and one John J. O'Connor, they being the locomotive fireman and engineer, respectively, as defendants. The cause was dismissed as to O'Connor before judgment. Said complaint was in three paragraphs. The first paragraph contained charges of negligence, based upon the excessive speed of the train and failure to give the statutory signals; the second paragraph was upon the theory of the last clear chance; and the third charged a willful injury. The issues were closed by replies in general denial. There was a jury trial, which resulted in a verdict against the railroad company and in favor of the appellee Kleeman. The appeal is from the overruling of the railroad company's motion for a new trial.
The first proposition presented by the appellant, and the one most strenuously urged in its brief, is that this court should hold that under the evidence the appellee Reyher's decedent was guilty of contributory negligence as a matter of law. We are called upon to interpret and apply a so-called rule of presumption, which may be stated as follows: That if a person, by the exercise of ordinary care, could have known of the approach of a train, by looking or listening, in time to have avoided the injury, it will be presumed, if he is killed, that he did not look or listen, or, that if he did, he did not heed what he saw or heard. Appellant contends that when this presumption is applied to the undisputed evidence, it must be concluded, as a matter of law, that the decedent was guilty of contributory negligence.
The subject of presumptions has long been one of much confusion to the courts. Attempts have been made to divide them into two classes, i. e., presumptions of law and presumptions of fact. We are not here concerned with the so-called presumptions of law, and Professor Wigmore, in his exhaustive Treatise on Evidence, § 2491, has pointed out: .
Considering the subject here under consideration, this court said in Kelley v. Dickerson, 1938, 213 Ind. 624, 634, 13 N.E.2d 535, 539: 'The law of this state does not permit the indulgence in the presumption that a person will exercise his faculties for his own protection and safety, nor may it be presumed that he was or was not guilty of contributory negligence, nor that he failed to exercise ordinary care.' Consequently, when courts have undertaken to instruct juries that this or that may be presumed, without evidence of the fact, they have invariably committed error.
The term 'presumption of fact' has been loosely used in determining who has the opening and close and upon whom the burden rests in the trial of a lawsuit. Thus, in an action for damages for wrongful injuries or death, due to alleged negligence, when the statute relieves the plaintiff of the burden of pleading and proving freedom from contributory negligence (section 2-1025, Burns' Ann.St.1933) it is not correct to say that the plaintiff is presumed not to have been negligent, but rather that the matter is not in issue and that the court is not concerned with it, unless it affirmatively appears that the plaintiff was guilty of such contributory negligence. It has also been imprudently asserted that presumptions may be drawn from the facts by the trial court when it passes upon a motion for a directed verdict or a demurrer to the evidence, and by the appellate tribunal when it is called upon to determine whether the verdict or decision is supported by the evidence or is contrary to law. It is likewise incorrect to say that the courts may presume any fact under such circumstances. As in the illustration used above, there is no presumption whatever that either party was or was not guilty of negligence. The court is merely called upon to determine if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider in deciding that issue, or if the undisputed evidence discloses that the plaintiff was guilty of negligence that proximately contributed to his injury or death. While some facts may be made presumptive evidence by operation of law, neither courts nor juries have any right to presume any fact in issue which they are called upon to determine. The ultimate facts may, of course, be established by direct or circumstantial evidence, as well as by such inferences as may be legitimately drawn therefrom.
There is evidence that in the late afternoon of February 12, 1936 the decedent, who was a physician 54 years of age, in good health, and possessed of his faculties, was driving north on Clark Street, in the city of Gary; that said street is crossed by three...
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