Callahan v. New York Cent. R. Co., 19473

• Decision Date: 14 March 1962
• Docket Number: No. 1,No. 19473,19473,1
• Citation: 134 Ind.App. 232,180 N.E.2d 547
• Parties: John P. CALLAHAN, Administrator of the Estate of Harry A. Patterson, Deceased, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee
• Court: Indiana Appellate Court

Page 547

180 N.E.2d 547

134 Ind.App. 232

John P. CALLAHAN, Administrator of the Estate of Harry A.

Patterson, Deceased, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee.

No. 19473.

Appellate Court of Indiana, Division No. 1.

March 14, 1962.

Frank G. Stoessel, Greencastle, Mann & Mann, by Luther G. Johnson, Terre Haute, for appellant.

Rexell A. Boyd, Greencastle, Jerdie D. Lewis, Terre Haute, Marvin A. Jersild, Chicago, Ill., Lewis & Lewis, Terre Haute, of counsel, for appellee.

COOPER, Judge.

This is an appeal from the Putnam Circuit Court wherein the appellant, as an administrator, brought an action alleging the negligence of the appellee herein in the alleged wrongful death of one Harry A. Patterson.

To the plaintiff's amended complaint, the defendant appellee filed its answer, including a second paragraph of answer, alleging that the sole, proximate cause of the collision involved was caused by the negligence of one Kendall Hooker, driver of the vehicle alleged to have been struck.

The cause was submitted to a jury, and the jury found in favor of the defendant. Within the proper time, the appellant filed his motion for a new trial, the same being overruled. This appeal followed.

The appellant's assigned error is the court erred in overruling appellant's motion for a new trial.

Because we have determined the trial court erred in giving an instruction to which the appellant made a proper objection, we need not discuss other specifications of error averred in appellant's motion for a new trial. Pub. Ser. Comm. of Ind. v. C., I. and L. Railway Co. (1956) 235 Ind. 394, 399, 132 N.E.2d 698, 134 N.E.2d 53; Tribune-Star Publ. Co. v. Fortwendle (1953) ( T. D. 1954) 124 Ind.App. 618, 115 N.E.2d 215, 116 N.E.2d 548; Flowers v. State (1956) 236 Ind. 151, 139 N.E.2d 185; Enos Coal Mining Co. v. Schuchart (Ind.App.1962) 180 N.E.2d 129, Cause Number 19421.

It appears from the record that the trial court gave appellee's tendered instruction #17 over the written objection of the appellant. This is specified as error in the appellant's motion for a new trial.

It appears said instruction told the jury:

'If you find by a preponderance of all of the evidence that the death of plaintiff's decedent was the result of a collision between a motor vehicle in which plaintiff's decedent was riding and a train operated by defendant, the fact alone, though inviting your sympathy, shall not entitle plaintiff to a verdict, and unless you find by a preponderance of all of the evidence in this case that such death was proximately caused by negligence on the part of the defendant, as alleged in plaintiff's amended complaint, without negligence on the part of plaintiff's decedent, your verdict must be for the defendant.' (Our emphasis)

Thus, it is apparent that the instruction is mandatory and is also peremptory in effect. It unequivocally tells the jury that its verdict 'must be' for the appellee 'unless' the jury finds that (1) death was proximately caused by the appellee's negligence, (2) without negligence on the part of the decedent.

Under this instruction the jury was not permitted to find for the appellant even though it should find that the appellee's negligence was the proximate cause of the decedent's death unless it also found that the decedent was without negligence so that whether the decedent's negligence...