Bedford, S. O. & B. R. Co. v. Rainbolt

Decision Date23 January 1885
Docket Number11,364
PartiesThe Bedford, Springville, Owensburg and Bloom-field Railroad Company v. Rainbolt
CourtIndiana Supreme Court

From the Owen Circuit Court.

Judgment is affirmed.

M. F Dunn, G. G. Dunn, A. G. Cavins and E. H. C. Cavins, for appellant.

E. E Rose and E. Short, for appellee.


Mitchell, J.

Solomon Rainbolt, on the 8th day of November, 1881, became a passenger on one of the trains of the Bedford, Springville, Owensburg and Bloomfield Railroad Company, to be carried from Switz City to Bedford.

While being thus carried, the car in which he was seated, together with the train by which he was proceeding, was precipitated into White river while passing over an iron or combination bridge built or used by the company. He sustained severe, and it is claimed permanent, injuries by the fall, and from being involved in the wreck of the train in the river.

His complaint for damages is in three paragraphs, which are in no material respect different from each other.

Preceded by the formal averments, the default of the railroad company is averred in the first paragraph, as follows: "That by the carelessness, negligence and default of its agents and employees, and for want of due care and attention to its duty in that behalf, the said cars broke through the railroad bridge across White river." And in the second as follows: "That by the carelessness, negligence and default of its agents, servants and employees, and for want of due care and attention to its duty in that behalf, the locomotive and cars were run upon and through the railroad bridge," etc. And in the third as follows: "That said defendant did, by its servants, agents and employees, carelessly and negligently conduct the running of said cars, and was so in default in the care and oversight of said railroad and bridges thereon, that said cars were ran upon the railroad bridge over and across White river, said bridge being, as defendants knew, insecure, and were thereby thrown into White river." Each paragraph concluded with an averment of the injuries sustained, and a claim for damages.

The trial resulted in a verdict and judgment, over a motion for a new trial, for the plaintiff, from which judgment the appellant prosecutes this appeal.

The argument of appellant's counsel embraces four points:

1. That the complaint is not sufficient, for failing to show, either by direct averment or by its statement of facts, that the appellee was himself without fault. For this alleged error, it is contended, the motion in arrest of judgment should have been sustained, there having been no demurrer to the complaint.

2. That by reason of the failure of the jury to make direct answers to some of the interrogatories propounded, a venire de novo should have been awarded.

3. That the court erred in giving, and refusing to give, certain instructions to the jury. A summary of those given and complained of, and those refused, will be found farther on.

4. That certain testimony admitted on behalf of the appellees as rebutting evidence was incompetent.

Concerning the first point, we have to say that while it is, and ought to be, the rule, that in actions for damages growing out of the alleged negligence of another, it must always be made to appear from the complaint, either by direct averment or by the statement of the facts and circumstances under which the injury occurred, that the plaintiff was without contributory fault or negligence, we are of the opinion that the complaint in this case is, nevertheless, sufficient within that rule.

The averment that the injury occurred in a given case without the fault or negligence of the plaintiff is not always controlling; nor is the absence of such averment in every case to be taken as a failure to aver due care.

Taking all the allegations of a complaint together, and notwithstanding the formal negative averment, the presumption of contributory negligence may appear, as in the cases of President, etc., v. Dusouchett, 2 Ind. 586, Riest v. City of Goshen, 42 Ind. 339, and other cases, or conversely, as in Duffy v. Howard, 77 Ind. 182, and cases there cited.

From the averments in the complaint, in this case, it must be taken that the appellee was lawfully a passenger on the appellant's train of cars, presumably submitting to its rules and regulations as such. The giving way of the railroad bridge, over which the train was passing, precipitated him violently into the river below, inflicting upon him the injuries complained of, and it must be held from the situation in which the appellee is shown to have been, the relation which he occupied toward the railroad company, which relation placed him under no duty except to remain passive in its hands while being carried, that all presumption of negligence on his part is rebutted by the averments of the complaint. Mitchell v. Robinson, 80 Ind. 281 (41 Am. R. 812); Michigan Southern, etc., R. R. Co. v. Lantz, 29 Ind. 528.

It is suggested in the argument, that it does not appear, but that he may have conducted himself negligently after the bridge went down, in the endeavor to extricate himself from the wreck, etc.; but we are not disposed to hold that a passenger who without fault becomes involved in a disaster of the apparent magnitude of that here described, should be required to aver or prove that he acted with prudence and deliberation while so involved. The court committed no error in overruling appellant's motion in arrest.

Was it error to overrule the appellant's motion for a venire de novo as contended in counsel's second point? If the question was properly raised in the record, the answer to it would depend upon whether the interrogatories, the answers to which are complained of, were pertinent and direct, and whether such answers are uncertain, indefinite or evasive.

The question of the sufficiency of the answers to the interrogatories is not properly raised by a motion for a venire de novo. A venire de novo can only properly be awarded where the verdict of the jury is so imperfect that a judgment can not be rendered thereon.

The general verdict, however, when in proper form, covers all the issues in a given case, and it can not be said, because an answer to an interrogatory returned with a general verdict, properly framed, is indefinite, uncertain or ambiguous, that, therefore, there is either a failure to find on all the issues, or that there is an ambiguity in the finding or verdict of the jury. Until overthrown by a special finding, absolutely inconsistent with it, the general verdict stands, and the judgment which follows is supported by it, and does not in any manner depend for support on the special interrogatories. By failing to observe the distinction between a special verdict or special finding of facts, and answers to interrogatories propounded to the jury. Some of the cases have held that the failure of the jury to make certain and definite answers to interrogatories may be a cause for a venire de novo, but the proper way of saving the question in such case is indicated in West v. Cavins, 74 Ind. 265, McElfresh v. Guard, 32 Ind. 408, and Ogle v. Dill, 61 Ind. 438. These cases hold that a failure of the jury to make definite answers to interrogatories, where there is a general verdict returned, is not proper ground for a venire de novo, and what is said in Peters v. Lane, 55 Ind. 391, and Carpenter v. Galloway, 73 Ind. 418, indicating a different rule, may be regarded as modified by the later cases.

We have examined the questions propounded to the jury, and their answers, and while some of them are not answered directly, we are, nevertheless, of the opinion, considering the character and construction of the questions, that the answers can not be said to be improper. For the reasons mentioned, there was no error in the ruling of the court in overruling the motion for a venire de novo.

The next point argued is that the court erred in giving, of its own motion, instructions numbered 8, 9, 11 and 12, and in refusing to give the appellant's instructions, prayed for, numbered 4, 5 and 7. That we may not extend this opinion beyond bounds, we give only the substance of the instructions complained of, which were given by the court, embracing all that is material to present the questions raised:

In the eighth instruction the jury were told, in substance, that if they should find from the evidence that the plaintiff was injured by an accident arising from a defect in the road or bridge of said company, without any fault on his part, the legal presumption is that the injuries of the plaintiff were caused by the negligence of the defendant, and that this presumption might be overthrown by proof that the injuries complained of resulted from inevitable accident, or from something against which no human prudence or foresight could provide.

And in the ninth the jury were told, in substance, that while a carrier does not, in legal contemplation, warrant the absolute safety of passengers, it is yet bound to the exercise of the utmost diligence and care, and that the slightest neglect against which human...

To continue reading

Request your trial
73 cases
  • Louisville, N.A.&C. Ry. Co. v. Miller
    • United States
    • Indiana Supreme Court of Indiana
    • May 10, 1894
    ...complained of, it was held that all presumption of negligence on his part is rebutted by these averments. Railroad Co. v. Rainbolt, 99 Ind. 551. In another such case, it is said there is no question of contributory negligence. Railway Co. v. Snyder, 117 Ind. 435, 20 N. E. 284. But that part......
  • The Louisville, New Albany and Chicago Railway Company v. Miller, 16,320
    • United States
    • Indiana Supreme Court of Indiana
    • May 10, 1894
    ...of, it was held that all presumption of negligence on his part is rebutted by these averments. Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551. In another such case it is said there is no question of contributory negligence. Louisville, etc., R. W. Co. v. Snyder, 117 Ind. 435, 20 N.E. 284......
  • Henry v. Grand Avenue Railway Company
    • United States
    • United States State Supreme Court of Missouri
    • January 31, 1893
    ...v. Ins. Co., 24 Wis. 28; White v. Railroad, 30 S.C. 218; Paxton v. Boyer, 67 Ill. 132; Morris v. Platt, 32 Conn. 35; Bedford v. Railroad, 99 Ind. 551; Lemon v. Chanselor, 68 Mo. 346; Morning Light, 2 Wall. 560; Houston v. Railroad, 49 Tex. 576; 1 American & English Encyclopedia of Law, titl......
  • Indianapolis Southern Railroad Company v. Emmerson, 7,581
    • United States
    • Indiana Court of Appeals of Indiana
    • June 19, 1912
    ...(1873), 44 Ind. 184; Louisville, etc., R. Co. v. Kelly (1884), 92 Ind. 371, 47 Am. Rep. 149; Bedford, etc., R. Co. v. Rainbolt (1885), 99 Ind. 551; Louisville, etc., R. Co. v. Thompson (1886), 107 Ind. 442, 8 N.E. 18, 9 N.E. 357, 57 Am. Rep. 120; Grand Rapids, etc., R. Co. v. Ellison, supra......
  • 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