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

• Decision Date: 20 December 1916
• Docket Number: No. 22604.,22604.
• Citation: 114 N.E. 440
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. MARKLE.

114 N.E. 440

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

v.MARKLE.

No. 22604.^*

Supreme Court of Indiana.

Dec. 20, 1916.

Appeal from Circuit Court, Randolph County; James S. Engle, Judge.

Action by Grant C. Markle against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed, with instructions to grant new trial.

Miller, Shirley, Miller & Thompson and Frank L. Littleton, all of Indianapolis, and Macy, Nichols & Bales, of Winchester, for appellant. Walter G. Parry, of Winchester, and John F. Robbins, of Indianapolis, for appellee.

MORRIS, J.

Action by appellee for personal injuries sustained at a street crossing. Appellant's motion to make the complaint more specific, and its demurrer to the complaint, were each overruled. A trial by jury resulted in a verdict and judgment for appellee.

[1] Without setting out the motion to make more specific, it is sufficient to say that there was no error in overruling it. The principal objection urged against the complaint is that it affirmatively shows contributory negligence. We are of the opinion that the facts averred do not wholly exclude a reasonable inference of freedom from contributory negligence, and consequently there was no error in the ruling. Greenawaldt v. Lake Shore, etc., Ry. Co. (1905) 165 Ind. 219, 223, 74 N. E. 1081;Cleveland, etc., R. Co. v. Rumsey (1913) 52 Ind. App. 371, 100 N. E. 782.

It is earnestly contended by appellant that the trial court erred in overruling its motion for a new trial, grounded, among other things, on alleged misconduct of John F. Robbins, one of appellee's attorneys, in his closing argument. The matters complained of are exhibited in a bill of exceptions containing the following:

“Mr. Robbins: I am simply replying to this argument that was made for one hour-that this man was guilty of contributory negligence by failure to do certain things-and all I was saying was that, if that were so, your honor, you would never have submitted it to the jury. Mr. Miller: I ask the court to instruct the jury not to consider why this case was submitted to the jury. The Court: The jury will disregard the argument of Mr. Robbins that the reason why this cause goes to the jury was because, as a matter of law, the plaintiff was not guilty of negligence as a matter of law. What the court has done or should do in this matter is not a matter for the jury's consideration. The gentleman has a right to argue to this jury that, as a matter of law, the plaintiff is not guilty of contributory negligence, but he should make no reference to the duty of the court in this respect. Mr. Robbins: I said this, and I am going to say it again. I am not going to intrench on the rule of the court. I said it is a law of the state of Indiana that when but one inference can be drawn from the conduct of a plaintiff-that if they were guilty of contributory neglience; I said when this is a fact no jury ever got to try a case because, as a matter of law, he is guilty of contributory negligence. Mr. Miller: The defendant objects to the further statement made by the counsel for the plaintiff and moves the court in this case to set aside the submission of this cause to the jury on the ground of improper conduct of the counsel in closing argument. Mr. Robbins: And I don't suppose- The Court: Just wait, Mr. Robbins. You Must pay some attention here. The jury will disregard the statement made by Mr. Robbins which has been objected to by the counsel for the defendant and not consider it in this case. Mr. Miller: I move to set aside the submission. The Court: Motion overruled. Mr. Miller: To which the defendant excepts. Mr. Robbins: May I state whenever a man approaches a railroad crossing- The Court: If you continue this, you will get the submission set aside. Mr. Robbins: I don't say Mr. Miller or Mr. Bales are men that would deliberately concoct perjury, but I do say railroad companies often have agencies at work in damage suits that are awfully unreliable. Mr. Miller: I object to the statement just made by plaintiff's counsel, and ask the court to instruct the jury that it is improper argument. I think this is not proper argument. Mr. Robbins (Con.): Do you think these young men that came here and swore falsely after they held up their hands are reliable witnesses? Mr. Miller (Con.): To make a statement to the jury that railroad companies often have agencies which are unreliable in the manner in which Mr. Robbins has stated it is to impute fraud and prejudice the jury against railroad companies generally and against this defendant. It would throw no light- Mr. Robbins: I was about to add, when I was interrupted by the voluble gentleman-I was about to add that in this case this fact was made certain and plain. We have got them right here in this court and in this witness chair, five or six different men coming in here and contradicting each other in material facts, haven't we? Mr. Miller: I do think we are entitled to a ruling. The Court: I will instruct the jury to disregard the statement made by Mr. Robbins covering the statement that railroad companies often have agencies that are unreliable. Mr. Robbins (Con.): Perhaps I ought not to have said they often had. I am going to content myself by saying they did have in this case, and that they brought them into court, and that they swore to lies right here before this jury. Mr. Miller: I object and move the court to set aside the submission of this case on the ground that the counsel has made a statement to the jury concerning which there is not an iota or scintilla of evidence in this case, and which cannot be cured by a mere instruction of the court to the jury to disregard it. The Court: Gentlemen of the jury, the expression made by counsel for this plaintiff that is objected to is withdrawn from the jury, and the jury will not consider it in their deliberations upon a verdict in this case. The motion to withdraw the case from the jury is overruled. Mr. Miller: To which the defendant excepts.”

Mr. Miller, referred to above, was one of appellant's counsel. As shown by the records of this court, Mr. Robbins is a lawyer of long and active experience in the practice of his profession.

[2] The principal defense relied on by appellant was that of contributory negligence. The evidence tends to show, among other things, that appellee, at the time of the accident, was a physician, in the prime of life, and in possession of his faculties of sight and hearing; that he was traveling northward in a buggy, on Union street, in Winchester, and approaching the point where the street was crossed by two of appellant's railroad tracks; that when near the crossing one of appellant's freight trains crossed the street, going west, on the south track, and then stopped; that appellee then proceeded northward and was struck by another train, going east on the north track; that to the west there were certain obstructions, and the west-bound freight emitted much smoke, and its engine made a loud noise, after stopping. Appellant's crossing was equipped with an electric gong to warn travelers of the approach of trains. This gong was ringing, after the passing of the west-bound freight, and as appellee approached the north track; but he testified that, while he heard the same, he thought it was a continuance of the sounding of the gong caused by the passing of the west-bound freight. It is claimed by appellee that there is evidence that warranted the jury in finding that the gong was in the habit of ringing for some time after a train had passed the crossing, and that appellee knew said fact. The evidence relating to the question of contributory negligence was oral and, in some respects, conflicting, and was such as to make the case a very close one. Appellant, at the close of the evidence, had made a motion to instruct the jury to find for defendant. The motion was overruled. It may be that this motion was predicated on the theory that the evidence, as a matter of law, showed contributory negligence. If so the ruling of the court on the motion was not a proper subject of discussion by appellee's counsel. Campbell v. Maher (1886) 105 Ind. 383, 4 N. E. 911. But even had such discussion been proper, there was nothing in any possible question presented by appellant's motion, or the court's ruling thereon, to justify appellee's counsel in making the statement, which sought to convey to the jury the idea that the court, impliedly, had held that the plaintiff was not guilty of contributory negligence. Appellee had made no motion to withdraw the issue of contributory negligence from the jury's consideration, and, if such motion had been made, it would have been without any basis for support. The question of contributory negligence here was essentially one for the jury's determination. By the statement it was sought, without any justifiable excuse, to present to the jury an extraneous matter normally calculated...