Cincinnati, Hamilton & Dayton Railroad Company v. Gross
| Decision Date | 30 January 1917 |
| Docket Number | 23,209 |
| Parties | Cincinnati, Hamilton and Dayton Railroad Company v. Gross |
| Court | Indiana Supreme Court |
Petition for Rehearing Dismissed June 29, 1917.
From Shelby Circuit Court; Alonzo Blair, Judge.
Action by Carl Gross against the Cincinnati, Hamilton and Dayton Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p. 565.)
Affirmed.
John B Elam, James W. Fesler and Harvey J. Elam, for appellant.
Little & Little and Wray & Campbell, for appellee.
OPINION
This is an appeal from a judgment for $ 3,000 recovered by appellee on account of personal injuries sustained by him while in the employ of appellant as a railroad brakeman. The only error assigned challenges the ruling of the circuit court in denying appellant's motion for a new trial, and under this assignment certain instructions given and refused are first questioned. Instruction No. 1, given by the court on its own motion, sets out in substance the allegations of appellee's complaint, and it was followed by instruction No. 2 which in effect told the jury that if appellee should prove all the material averments of his pleading by a fair preponderance of the evidence he would be entitled to a verdict.
The sufficiency of this instruction as a matter of law is here challenged by appellant on the theory that the allegations of appellee's complaint, to which the instruction refers, do not state a cause of action. A similar objection is made to No. 6 of the court's instructions. To meet these objections appellee calls attention to the fact that the sufficiency of his complaint was not tested in the trial court by demurrer and contends that appellant has thus waived any defects in the pleading and in instructions which are based on the allegations thereof. This position finds express support in the case of Dunham v. Jones (1915), 184 Ind. 46, 48, 110 N.E. 203, 204, where it is held that by failing to demur to a complaint, the defendant waives a consideration of its sufficiency to state a cause of action and cannot thereafter predicate error in the giving of an instruction which authorizes a verdict on proof of the material allegations of the pleading. To hold otherwise would tend materially to weaken the force of the amendment to the demurrer statute, as made by the general assembly of 1911 (§ 2, Acts 1911 p. 415, § 344 Burns 1914), and permit an indirect attack on a pleading after the complaining party has waived his right to attack the same directly and awaited the outcome of the trial. We hold, therefore, that the error, if any, in instructions Nos. 2 and 6 given by the court on its own motion has been waived.
The objections urged as to the giving and the refusal of other instructions rest: First, on appellant's contention that the trial court erroneously construed appellee's complaint as being predicated on the federal Employers' Liability Act; and, secondly, on its further contention that some of these instructions do not fully state the effect of contributory negligence on the right to a recovery under that law. We need not review in detail the allegations of the complaint. There can be no doubt that it is fairly open to the construction placed on it by the trial court and that construction will be adopted on appeal, even though it should appear that the pleading is open to another and equally reasonable interpretation. Gilchrist v. Hatch (1915), 183 Ind. 371, 381, 106 N.E. 694. The instructions which applied the statutory rule that contributory negligence, under the federal act, operates to diminish the amount of recovery rather than to defeat the action, were correct in principle (Norfolk, etc., R. Co. v. Earnest [1912], 229 U.S. 114, 120, 33 S.Ct. 654, 57 L.Ed. 1096, Ann. Cas. 1914 C 172), and, if incomplete, appellant should have requested a more specific charge in order to make the error if any, available. Dunham v. Jones, supra.
Certain objections are also made as to the exclusion of evidence offered by appellant. It appeared from evidence introduced on behalf of appellee that, following the accident, he was brought to the Deaconess Hospital at Indianapolis and an operation was there performed to relieve his injuries; that for three or four days after the operation he was in a very weakened condition and, at times, semi-conscious; that he was attended by Drs. Truitt and Ossenbach, the latter of whom called twice each day for the first two or three days. Dr Ossenbach was called to the witness stand by appellant and testified that he had been in the employ of the company as a surgeon for about fifteen years; that after the accident in which appellee was injured he directed the hospital nurses not to admit any one into appellee's presence except at the direction of the witness; that he visited appellee occasionally during his stay in the hospital and after his return to his home, and gave directions as to the care of the injured man and the administration of medicines; that on the first or second evening after the accident witness made an arrangement with White and Vorhees, representatives of appellant, to visit and interview appellee in the waiting room of the hospital; that appellee, at witness's direction was wheeled into the waiting room and there questioned by White and Vorhees concerning the wreck; that appellee was not previously advised as to the purpose of taking him to the waiting room. The witness was then asked, "What did Mr. Gross say at that time?" Appellee objected to this question on the ground that it called for a privileged communication and the court sustained the objection. In response to further...
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