Cleveland, C., C. & St. L. Ry. Co. v. Wolf

• Decision Date: 20 December 1917
• Docket Number: No. 8752.,8752.
• Citation: 118 N.E. 129
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. WOLF.
• Court: Indiana Appellate Court

118 N.E. 129

CLEVELAND, C., C. & ST. L. RY. CO.

v.WOLF.

No. 8752.

Appellate Court of Indiana, Division No. 1.

Dec. 20, 1917.

Appeal from Circuit Court, Bartholomew County; John W. Donaker, Special Judge.

On petition for rehearing. Petition overruled, and former opinion upheld.

For former opinion, see 114 N. E. 236.

Carter & Morrison, of Shelbyville, for appellant. Osborn & Hamilton, of Greensburg, for appellee.

HOTTEL, J.

[1][2] In this case the appellee has filed a petition for rehearing and supported the same by a brief in which it is very ably and earnestly urged that the court has erred in its opinion herein. It is contended that the court erred: (1) In holding that the answer to interrogatory 44 was not responsible and should therefore be disregarded; (2) in holding that the other answers to interrogatories are in irreconcilable conflict with the general verdict. The first contention will be first considered. Said interrogatory and answer are as follows:

“If the coupling apparatus was out of repair by reason of the coupling rod being choked with sand so that it did not move easily, was it necessary for the decedent, if by reason thereof he went between the cars, to have directed the cars to be backed while he was between them, if he did direct them? Answer: No evidence that he did direct them.”

This interrogatory is complicated, and is subject to the criticism that the question which it seeks to have answered is not made clear and certain because of the fact that several questions are involved therein. Appellant,however, propounded it and is responsible for its infirmities, and hence should be bound by the effect of any answer that can fairly be said to be responsive to any reasonable interpretation thereof. National Motor Vehicle Co. v. Kellum, 184 Ind. 457, 109 N. E. 196, 199;Indianapolis Coal, etc., Co. v. Dalton, 43 Ind. App. 330, 335, 87 N. E. 552.

In determining whether the answers is responsive, we think it will be helpful to indicate the separate questions which appellee claims are included in the interrogatory. They are as follows: (a) Was the coupling apparatus so out of repair by reason of the rod's being choked with sand that it did not move easily? (b) By reason thereof, did decedent go between the cars? (c) Did he so direct the cars to be backed while he was between them? (d) Was it necessary for decedent to have so directed the cars to be backed while he was between them?

It is claimed by appellee, in effect, that the answer made to said interrogatory was responsive to that part of it represented by question (c) supra, and that the form of the interrogatory was such that a negative answer to question (c) was a complete answer to the entire interrogatory, in that such answer made an answer to the remaining questions unnecessary. After a careful examination of this interrogatory in the light of appellee's contention, we are convinced that it is at least reasonably susceptible of his interpretation thereof, and, when so interpreted, the question whether the answer thereto is responsive is practically the same question as would be presented if a witness upon the witness stand, in response to a question, “What did he say if he said anything?” should answer, “He did not say anything.” We do not think that a court would strike out such an answer on the ground that it was not responsive.

[3] The holding in the original opinion that said answer was not responsive to the question propounded is therefore modified as indicated, but such holding was not of controlling influence, except as incidental to the determination of the question whether there was irreconcilable conflict between the answers to the interrogatories and the general verdict. As was said, in effect, in the original opinion, appellee in his original brief did not seriously contend that there was not irreconcilable conflict between many of the answers to the interrogatories and the general verdict; but their contention was that:

“After eliminating such as are in conflict with and neutralize and nullify each other, the others are not inconsistent or in irreconcilable conflict with the general verdict.”

Interrogatory No. 44 was relied on by appellee as contradicting and nullifying those which appellant claimed to be in conflict with the general verdict, and hence, if it was not in fact in conflict with such other interrogatories, the fact that the court, in the original opinion, ignored and disregarded it in determining the question of conflict between the other interrogatories and the general verdict, was not of importance in its effect upon the correctness of its conclusion upon the main question. It becomes important therefore that we determine whether there is in fact any conflict between interrogatory 44 and the other interrogatories. In the determination of this question, it must be remembered that it is the duty of the court to reconcile such answers with each other where it can be reasonably done. William Laurie Co. v. McCullough, 174 Ind. 477, 90 N. E. 1014, 92 N. E. 337, Ann. Cas. 1913A, 49;Nordyke & Marmon Co. v. Whitehead, 183 Ind. 7, 106 N. E. 867.

In our judgment the particular wording of the respective interrogatories, claimed to be contradictory in the instant case, furnishes a means of reconciling any apparent conflict between them. The following are the interrogatories and answers claimed by appellant to be in conflict with the general verdict, and which appellee claims are nullified by the answer to interrogatory No. 44:

“I. 33. After said train was slacked ahead and while he was between the cars, did not the deceased say, ‘All right, back up?’ A. Yes.

I. 35. Did not the conductor then give the signal to the engineer to back the train? A. Yes.

I. 40. Did not the conductor, in response to what the decedent said, while the latter was between the cars, give the signal to the engineer to back the cars? A. Yes.

I. 41. Was not the car that injured the decedent backed in response to the signal given to the engineer by the conductor after he heard what the decedent said while he was between the cars? A. Yes.

I. 49. Did not the conductor understand from what the decedent said while he was between the cars that the decedent directed that they should be backed? A. Yes.

I. 50. Was not the statement made by the decedent while between the cars such as was then understood by railroad men to mean the cars were to be backed without reference to whether decedent was between them? A. Yes.

I. 51. Were the cars backed at the time the decedent was injured until after he, while between the cars, made the statement the conductor said he heard just before the cars were backed a second time? A. No.

I. 54. Was the car that injured the decedent moved during the time he was trying to couple it and the other car, until he had said or done that which indicated to the engineer or conductor that it should be moved? A. No.”

Another interrogatory and answer of influence in the determination of said question are as follows:

“Interrogatory No. 39. Did not the conductor hear what the deceased said while he was between the cars? Answer No. 39....