Central Indiana Ry. Co. v. Mikesell, 20233

• Decision Date: 10 November 1966
• Docket Number: No. 20233,No. 1,20233,1
• Citation: 221 N.E.2d 192,139 Ind.App. 478
• Parties: CENTRAL INDIANA RAILWAY COMPANY, Appellant, v. Dessie MIKESELL, Appellee
• Court: Indiana Appellate Court

Page 192

221 N.E.2d 192

139 Ind.App. 478

CENTRAL INDIANA RAILWAY COMPANY, Appellant, v. Dessie MIKESELL, Appellee.

No. 20233.

Appellate Court of Indiana, Division No. 1.

Nov. 10, 1966.

Stewart & Austin, Anderson, for appellant.

Webb, Webb & Smith, Noblesville, for appellee.

FAULCONER, Judge.

This appeal is based upon an action brought by appellee, Dessie Mikesell, and her since deceased husband, John Milford Mikesell, against appellant, Central Indiana Railway Company, in the Hamilton Circuit Court, for damages to real and personal property of appellee. The cause was later venued to the Marion Circuit Court. The issues were formed by appellee's amended complaint in two paragraphs and appellant's answer in general denial, and second paragraph of answer.

Paragraph I of the amended complaint alleged, in pertinent part, as follows:

'3. That on or about said 30th day of June 1957, defendant maintained a fifteen feet high embankment which it had previously built and upon which defendant had erected its railroad tracks which said embankment passed in an east-west direction south of plaintiff's property about fifty feet south of plaintiff's said garage.

'8. That plaintiff's (appellee's) aforesaid damages were directly and proximately caused by defendant's (appellant's) careless and negligent acts and omissions, and each of them as follows:

'(a) Defendant carelessly and negligently constructed, erected and located its aforesaid embankment and tracks in such a place and manner so as to back up and dam up surface water south of said embankment thereby creating a situation where large volumes of water were collected thereby creating a hazardous condition resulting in the embankment collapsing and thereby permitting vast volumes of water to suddenly strike and damage plaintiff's property all of which defendant by reasonable care should have foreseen.

'(b) Defendant carelessly and negligently located, erected and constructed its aforesaid embankment and tracks so as to create a water damage hazard to plaintiff's property when it rained all of which defendant knew or by exercising due care should have known but which defendant chose to disregard.

'(c) Defendant carelessly and negligently constructed and erected a 48 inch tile drain in said embankment which was too small to carry the flow of said natural watercourse during periods of rain and too small to carry away surface water all of which defendant knew or should have known by exercise of reasonable care, thereby keeping said water from flowing in its natural manner in aforesaid creek, backing up water south of said embankment allowing vast quantities of water to collect and eventually be discharged on plaintiff's land and home and garage and tool shed as aforesaid.

'(d) That defendant carelessly and negligently permitted debris and silt to collect in said drain pipe thereby impeding the natural flow of water along said natural watercourse, causing said water to be dammed up creating a large body of water to be collected which eventually was discharged on plaintiff's property damaging same as hereinabove described.'

Paragraph II of the amended complaint sets out and incorporates the acts of negligence alleged in Paragraph I and alleges, in part, '(t)hat by reason of defendant's (appellant's) erection and maintenance of aforesaid embankment and tracks and by reason of defendant's failure to make necessary and proper provisions for the passage of water' a private nuisance was thereby created. To this amended complaint appellant filed a demurrer to Paragraph II thereof, which was overruled.

Appellant then filed an answer in general denial, and a separately filed second paragraph of answer stating, in part, that 'the damage as described in plaintiff's complaint was caused solely from an act of God and an unprecendented (unprecedented) downpour of rain within a short length of time, which could not be foreseen nor guarded against by the defendant.'

Both, appellant's motion for a directed verdict at the close of appellee's evidence, and appellant's motion for a directed verdict at the close of all the evidence, were overruled. The jury returned a verdict for plaintiff-appellee in the sum of $2,625, plus interest, from the date of the alleged damage. Judgment was entered thereon in the sum of $3,688.13.

Thereafter appellant filed its motion for a new trial, the overruling of which is assigned as error on this appeal.

While appellant's motion for a new trial contains thirty separate grounds, appellant includes only twelve in the argument section of its brief and, therefore, the remaining specifications are waived. Rule 2--17(e)(f), Rules of the Supreme Court, 1964 Revision; Huff et al. v. Ind. State Hwy. Comm., (1958), 238 Ind. 280, 282, 146 N.E.2d 299; White et al. v. Lafoon, (1963), 135 Ind.App. 100, 102, 192 N.E.2d 474.

Appellant, in the argument section of its brief, sets out five separate propositions. Under Proposition No. 1 appellant states that it is treating together the first five specifications in the motion for a new trial. Specification number three of appellant's motion for a new trial alleges '(m) isconduct of the plaintiff, the prevailing party, by his attorney * * *.' This specification is not discussed by appellant in the argument portion of its brief and is, therefore, waived. Rule 2--17(e)(f), supra.

The remaining four of the first five specifications of appellant's motion for a new trial, treated together under Proposition No. 1, as aforesaid, all refer to a remark made by one of plaintiff-appellee's witnesses, upon cross-examination, as follows:

'THE COURT: Read the question back and the partial answer.

'(The official reporter read the question and the partial answer as follows, towit:

"Q. You testified this morning that it was washed out. A. I testified to that fact. I remember in the testimony that--it was as I remembered in the testimony in--')

'MR. STEWART: The answer is not responsive.

'THE COURT: I think he has a right to explain his answer.

'MR. STEWART: I asked him if the saw the pipe.

'THE COURT: You asked him how he found out about it, too. You are questioning it being hearsay. He has a right to explain.

'MR. STEWART: If it is hearsay, he has no right to testify to it.

'THE COURT: He has a right to tell you. (To the witness.) You may answer.

'A. I started to say in my trial in Greenfield when we beat you in my trial in Greenfield--'

Appellant's motion for a mistrial was overruled, and thereafter the court gave the following admonition to the jury:

'THE COURT: I will strike out his answer. The jury is instructed to disregard his answer because it wasn't responsive to the question and was an improper remark of the witness.'

In addition to the above admonition the jury was given the following instruction, tendered by appellant:

'INSTRUCTION NO. 43

'How a trial involving a different plaintiff came out has no bearing on this case. You are instruction that you must completely disregard the assertion of the witness Robert Mills that he won another case against the defendant. It would not have a bearing on your decision in this case, and you must put such an assertion completely out of your minds, giving each party full and fair consideration and applying carefully and conscientiously the court's instructions on how to determine the verdict in this case.'

In Shepard v. Goben (1895), 142 Ind. 318, at page 321, 39 N.E. 506, at page 507, it is stated:

'It has been frequently held in this state that evidence erroneously admitted may properly be withdrawn by the court. (Citing authorities.)

'In the present case the withdrawal was complete, and the direction to disregard it was explicit, and, under the authorities cited, the error, if any, was fully cured.'

In many instances, where the trial court has withdrawn or struck evidence improperly admitted, coupled with an instruction admonishing the jury to disregard it, the admission of such improper evidence has been held to be harmless. 2 I.L.E., Appeals, § 622, p. 643.

We hold that any impropriety or prejudice in the statement made by plaintiff-appellee's witness was cured by the trial court's admonition and subsequent instruction to the jury. McPhearson v. State (1966), Ind., 219 N.E.2d 907, 910.

Under Proposition No. 3 appellant contends that '(t)he damages assessed by the jury are excessive' and '(t)he assessment of the amount of recovery is erroneous, being too large.'

'It has been held many times by this court that to reverse a judgment on the ground that the damages are excessive, it must appear that the damages assessed were so grossly and outrageously excessive as to induce belief that they were the result of prejudice, partiality or corruption.' Barnes Constr. Co. v. Washington Township (1963), 134 Ind.App. 461, 470--471, 184 N.E.2d 763, 766 (Transfer denied); Illinois Pipe Line Co. v. Coffman (1934), 98 Ind.App. 419, 427, 188 N.E. 217.

Three separate witnesses placed a value of $800 on plaintiff's garage, and a value of from $250 to $300 on plaintiff's tool shed. Plaintiff testified that she placed a value of $1,500 on her very extensive flower garden, and a value of $20 on a collection of family snapshots. Appellee's son testified to the value of her driveway and fence as being $15 and $150, respectively. All of the above items were shown to have been destroyed or rendered worthless. Appellee's son also estimated the damage to the foundation and basement of appellee's home to have been $300.

From the evidence in the record before us, this court cannot say that the damages were excessive to such degree as to show prejudice or corruption on the part of the jury.

Under Proposition No. 4 in the argument section of its brief, appellant presents the assertion contained in specification number fifteen of its motion for new trial; that the court erred in refusing to give appellant's tendered Instruction No. 3. Appellant, in its brief, sets out three instructions tendered by a...