City of Hammond v. Jahnke

• Decision Date: 25 June 1912
• Docket Number: 21,639
• Citation: 99 N.E. 39,178 Ind. 177
• Parties: City of Hammond v. Jahnke, by Next Friend
• Court: Indiana Supreme Court

99 N.E. 39

178 Ind. 177

City of Hammond v. Jahnke, by Next Friend

No. 21,639

Supreme Court of Indiana

June 25, 1912

From Laporte Superior Court; Harry B. Tuthill, Judge.

Action by Irwin Jahnke, by his next friend Ferdinand Jahnke, against the City of Hammond. From a judgment for plaintiff, the defendant appeals.

Affirmed.

J. A Gavit and J. H. Gillett, for appellant.

Peter Crumpacker and D. J. Moran, for appellee.

OPINION

Spencer, J.

Action by appellee for personal injuries sustained by him on account of the alleged negligence of the appellant in failing to keep in repair a street crossing in the city of Hammond, Indiana. The court overruled a demurrer to a second amended complaint and issues were joined by an answer in general denial. Trial by jury, and a verdict in favor of appellee, together with answers to ninety-eight interrogatories. The court overruled a motion for judgment on the answers to the interrogatories, and rendered judgment on the verdict.

Errors assigned are: (1) Overruling demurrer to the appellee's amended complaint; (2) overruling appellant's motion for judgment on answers of jury to the interrogatories, notwithstanding the general verdict; (3) overruling appellant's motion for a new trial.

Plaintiff's complaint alleged the following material facts: That on May 15, 1905, and for more than five years prior thereto, there was in the city of Hammond a public street and highway known as Henry street; that said street crosses the tracks of a railroad company in said city; that at said crossing the defendant constructed a public crossing by planking the same for a distance of more than twenty feet in width over the tracks; that the defendant negligently and carelessly constructed, maintained and permitted said planking immediately south of the north rail of the north main track of the railroad company at said crossing to be and remain so that there was a space about four inches wide and five inches deep entirely across said street; that said defendant well knew said condition of said crossing was extremely dangerous and hazardous to persons crossing said street at said place, and could have made said crossing safe by putting in a plank in said space, filling it up to the ball of said rail, but negligently failed so to do; that for more than six years prior to date of the injury herein complained of there was a large public school building, known as the "Lincoln school", located about one block west and two blocks north of said crossing; that the defendant knew that children of tender years crossed said crossing in going to and from school, but, notwithstanding said fact, defendant negligently and carelessly failed and refused to make said crossing safe by properly blocking the same, but allowed it to remain in the dangerous and defective condition as aforesaid; that on May 15, 1905, the appellee was a child of about seven and a half years old; that on said day he attended school at said Lincoln school; that the residence of his father is south of said schoolhouse and south of Henry street; that at the time he was crossing said crossing and on said public street he caught his left foot between the plank on said crossing and the north rail thereof in such a manner that he could not extricate the same therefrom, and before he could remove his foot the railroad company, without notice or warning of any kind, kicked or shunted a car, by bumping or kicking the same with one of its engines, from its southerly main track onto the track on which plaintiff was fastened and held as aforesaid; that no whistle was blown or bell rung to warn this plaintiff of the sudden approach of said car; that he was held fast in said space as aforesaid by reason of the negligence and carelessness of the defendant as aforesaid, and was struck by said car and thrown down and his left limb crushed and mangled in such a manner that his foot was severed therefrom at a point between the ankle and the knee; that said cross-walk had been in said condition for three months prior to said injury, and defendant should have known of the condition thereof, and had ample opportunity and time to repair any defects therein; that plaintiff was not familiar with said crossing and all the surroundings; that he did not know the condition of said cross-walk and could not realize its dangers and its liability to catch and hold his foot until it actually did so; that he exercised all the care and caution that a person of his age and experience would exercise under similar circumstances and conditions; that he will through life be unable to care for himself, etc., all to his damage, etc.

Plaintiff's amended complaint in this action is based upon the theory that the city of Hammond, Indiana, and the Chicago Terminal Transfer Railroad Company jointly constructed and maintained the crossing in question, and had both negligently and carelessly permitted the same to become and remain out of repair; that the defendants knew of said condition and the dangers arising therefrom, and had negligently and carelessly failed to repair the same, because of which the plaintiff's injury was sustained.

Prior to the determination of the issues, the Chicago Terminal Transfer Railroad Company became insolvent, and went into the hands of receivers. The appellee dismissed said action against said railroad company, and recovered solely against the appellant city.

We think appellee's amended complaint was sufficient to withstand the demurrer for want of facts, and that the court did not err in overruling the same.

Did the court err in overruling appellant's motion for judgment on the answers of the jury to the ninety-eight interrogatories, notwithstanding the general verdict?

The jury, answering said interrogatories, found the following material facts: That appellee received his injuries at the intersection of Henry street with the tracks of the Chicago Terminal Transfer Railroad Company in the city of Hammond, Indiana; that said city did not construct or undertake to maintain said crossing, but that said crossing was constructed and maintained "ever since road was built" by said railroad company; that said city had not instructed or authorized as to the manner of constructing same; nor had it notified said railroad company, in writing, thirty days or more prior to the accident, to change said crossing; nor is there evidence said city had ordered the railroad company to do so, by an ordinance; and that appellee could have seen the condition of said planked crossing had he looked before attempting to cross said tracks.

"The general verdict necessarily covers the whole issue, and solves every material question against the party against whom the verdict is rendered. The motion for judgment on the answers to the interrogatories, notwithstanding the general verdict, should be refused, unless the antagonism between the verdict and the answers to interrogatories is such, on the face of the record, as to be beyond the possibility of being removed by any evidence legitimately admissible under the issue." Stoy v. Louisville, etc., R. Co. (1903), 160 Ind. 144, 148, 66 N.E. 615. See, also, McCoy v. Kokomo R., etc., Co. (1902), 158 Ind. 662, 64 N.E. 92; Wright v. Chicago, etc., R. Co. (1903), 160 Ind. 583, 66 N.E. 454; Louthain v. Miller (1882), 85 Ind. 161.

"The general verdict necessarily determines all material issues in favor of appellee, and, unless the answers of the jury to the interrogatories are in irreconcilable conflict with the general verdict, * * * If such irreconcilable conflict exists, then the court erred in overruling said motion." Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 300, 53 N.E. 235. See, also, Inland Steel Co. v. Smith (1907), 168 Ind. 245, 80 N.E. 538; Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 78 N.E. 1033.

"In determining this question, we may look only to the complaint, answer, the general verdict, the interrogatories and the answers thereto." Inland Steel Co. v. Smith, supra. See, also, Indiana R. Co. v. Maurer (1903), 160 Ind. 25, 66 N.E. 156; Grass v. Fort Wayne, etc., Traction Co. (1908), 42 Ind.App. 395 at 395-400, 81 N.E. 514; City of Jeffersonville v. Gray (1905), 165 Ind. 26, 27, 74 N.E. 611.

The answers to the interrogatories show that they are not in irreconcilable conflict with the general verdict, and the court did not err in refusing to render judgment in favor of appellant on the answers to the interrogatories notwithstanding the general verdict.

Appellant's motion for a new trial assigns as separate grounds, (1) the verdict of the jury was not sustained by sufficient evidence, (2) the verdict of the jury is contrary to law, and (3) permitting the introduction of certain evidence.

Appellant insists that the evidence does not sustain the verdict. The evidence shows that appellee was seven and a half years old; that he attended the Lincoln school in the city of Hammond, Indiana; that on the afternoon of May 15, 1905, he left said school building, and started south towards the commons with other boys; when he reached the intersection of Henry street and the tracks of the Chicago Terminal Transfer Railroad Company, he stopped to play "tag"; a train was some thirty feet away; two tracks were at this intersection, extending eastwardly and westwardly, crossing Henry street, which was one of the public streets of appellant.

Five years prior to this date the railroad company constructed said crossing, placing on the inner side of each rail a thick plank some three inches from the rail; that said planks had become considerably worn and decayed, causing said crossing to be in a defective condition; that Jacob Schroeter was a member of the common council of the city of Hammond, and had been...