Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Harvey

• Decision Date: 07 January 1910
• Docket Number: 6,645
• Citation: 90 N.E. 318,45 Ind.App. 153
• Parties: CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HARVEY
• Court: Indiana Appellate Court

90 N.E. 318

45 Ind.App. 153

CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HARVEY

No. 6,645

Court of Appeals of Indiana

January 7, 1910

From Wayne Circuit Court; Henry C. Fox, Judge.

Action by Sarah M. Harvey against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff defendant appeals.

Affirmed.

Forkner & Forkner, for appellant.

Clay C Hunt, Jackson & Hunter and Robbins, Starr & Robbins for appellee.

OPINION

WATSON, J.

This action was brought by the appellee to recover damages for personal injuries alleged to have been received by her in falling upon the depot platform of the appellant at Mooreland, Indiana. The cause was tried upon the second paragraph of the complaint. The appellant, in its brief, says of the complaint: "The complaint, after stating the essential, prefatory facts, avers the alleged negligence of the defendant in the following terms: The plaintiff says the night was dark, and that said defendant had carelessly and negligently failed to provide, or cause to be provided, any artificial light of any kind to illuminate said grounds or way or said platform, and the raised end of said platform and said ground and said way were wholly unlighted and in total darkness, and that by reason thereof she was unable to see them and wholly unable to see the obstruction formed by said end of said platform raised as aforesaid, and she says she passed slowly and carefully over said ground and way, and while so walking along and over the same she came in contact with said raised end of said platform, and was thereby caused to trip, stumble and fall with great force and violence upon and against said platform, whereby and by reason whereof she avers that she then and there sustained and received a great, serious, severe and permanent wound and injury to her leg and knee.'"

The complaint also alleges that appellee resided in New Castle; that, on the day she received the injury, she and a party of friends went to the town of Mooreland over defendant's line of railway, for the purpose of attending church services; that she did attend church in Mooreland on the evening of the accident, and after the services were over she and her party of friends went to the defendant's depot for the purpose of returning to New Castle; that she was unfamiliar with the depot, its approaches and surroundings; that on the night of January 16, 1906, there was a regular passenger-train of the defendant's line scheduled to leave the depot of defendant at Mooreland at 10:26 o'clock p. m., and that said train did leave at said time on said night; that she had in the afternoon of said day purchased a round-trip ticket from New Castle to Mooreland, which entitled her to ride as a passenger on said train. No demurrer was addressed to this paragraph of complaint, nor was there any assignment of error challenging its sufficiency. The complaint contains sufficient averments to state a cause of action as required under the statutes.

The appellant has assigned three errors, upon which it says this judgment should be reversed, but its brief contains the following: "Upon the record, we present but two questions. (1) Did the court err in overruling the motion for judgment upon the answers to the interrogatories, notwithstanding the general verdict? (2) Did the court err in refusing to give the instructions before set forth?"

The jury returned a general verdict for $ 650 in favor of the appellee. By this general verdict every material fact legitimately provable under the issues is found in support of the verdict in favor of the appellee. The answers to the interrogatories will only overthrow the general verdict when they are so antagonistic to each other that both cannot stand. Keeley Brewing Co. v. Parnin (1895), 13 Ind.App. 588, 41 N.E. 471; Union Traction Co. v. Barnett (1903), 31 Ind.App. 467, 67 N.E. 205; Ohio, etc., R. Co. v. Trowbridge (1890), 126 Ind. 391, 26 N.E. 64; McCoy v. Kokomo R., etc., Co. (1902), 158 Ind. 663, 64 N.E. 92; Citizens' St. R. Co. v. Batley (1902), 159 Ind. 368, 65 N.E. 2; Lake Shore, etc., R. Co. v. Teeters (1906), 166 Ind. 335, 5 L. R. A. (N. S.) 425, 77 N.E. 599.

In determining whether the general verdict shall be overthrown by the answers to the interrogatories, we consider only the pleadings, general verdict and such answers. It is alleged that "the raised end of said platform and said ground and said way were wholly unlighted and in total darkness." The general verdict determined this, as well as every other question essential to appellee's right to recover, in her favor. The jury returned with the general verdict eighty-eight interrogatories with answers thereto. They stated the platform to be 144 feet long and 12 feet wide; that the depot was lighted by four lamps, which "three a profuse light out the windows," but this does not find that the platform was lighted. Moreover, it is charged,...