Cleveland v. Johnson

• Decision Date: 25 April 1893
• Citation: 33 N.E. 1004,7 Ind.App. 441
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. JOHNSON.

7 Ind.App. 441

33 N.E. 1004

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

v.JOHNSON.¹

Appellate Court of Indiana.

April 25, 1893.

Appeal from circuit court, Knox county; Geo. W. Shaw, Judge.

Action by William C. Johnson against the Cleveland, Cincinati, Chicago & St. Louis Railway Company to recover damages for personal injuries received while a passenger on defendant's train. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

John T. Dye, (Mason J. Niblack, of counsel,) for appellant. T. R. Cobb, Geo. G. Reily, and J. W. Emison, for appellee.

ROSS, J.

The appellee sued the appellant to recover damages for personal injuries received while a passenger on one of its passenger trains, which was derailed, and thrown down a high embankment. The jury returned a general verdict in favor of the appellee, assessing his damages at $1,500, and also returned answers to numerous interrogatories submitted by both parties. The complaint, after the formal allegations that the appellant was a common carrier of passengers, and that the appellee was a passenger on one of its passenger trains, consisting of an engine and baggage car, two passenger coaches, and a box car in which fruit was being transported, which ran off the track, and that the appellee was thereby thrown from his seat against the side and top of the car, greatly injuring him, contained specific allegations of the causes which occasioned the accident. The specific allegations are as follows: “The said car ran off said track by reason of the following causes, namely: The railway track, at the place where the car so ran off, was imperfectly and negligently fastened to the cross-ties. The cross-ties were rotten, and insufficient by reason thereof to hold the spikes and other fastenings by which the rails were held to said ties. Said railway embankment was not ballasted sufficiently to hold said ties in place. Said ties were so rotten that they at once broke in small pieces when said cars ran off the rails and upon said ties, and thereby threw said cars off the railway embankment, and turned said cars over as aforesaid. Said fruit car was not properly constructed to be run in a passenger train, being much too short, and having wheels too small. Said fruit car was not furnished with an air brake, but, on the contrary, had only a hand brake, and that of improper material, and so constructed that it dropped down beneath said car immediately before said car went off the track, and dragged upon the cross-ties on said track, and thereby jerked said ties out of place, and displaced the rails attached thereto, and threw said fruit car, and the car in which the plaintiff was riding, as aforesaid, off the said track, as aforesaid. Said fruit car was not properly and securely fastened to the trucks thereof, but was so loosely attached thereto that as it ran upon said railway track it wabbled from side to side; and finally said wabbling threw the same from the track, and tore the ties loose from said track, and in consequence thereof the car in which the plaintiff was riding was thrown from the track, and turned over, as aforesaid, and he sustained said injuries, wholly from the negligence and fault of the defendant, and from no negligence or fault of his. Plaintiff further says that at the place where said train so ran off the track the same was a steep grade, sloping downward in the direction the train was then running at the time of the injury aforesaid, and said train was then running at great speed, to wit, forty-five miles or more per hour, and said great speed contributed to said injury.”

The appellant assigns but one error in this court, namely: “The court erred in overruling appellant's motion for judgment in its favor upon the special findings of the jury notwithstanding the general verdict.” It is firmly and clearly settled-so much as to require no citation of authorities-that a general verdict is not controlled by answers to interrogatories unless such answers are irreconcilable with the general verdict. Where a fact is found, in answer to an interrogatory, which precludes a recovery at all, the fact so found controls the general verdict; but when the facts found are only such as to preclude a recovery upon one branch of a case, and no facts are found which would preclude a recovery upon another branch, it will be presumed that the jury based their verdict upon the branch upon which no facts were found inconsistent with such general verdict. The appellee averred, in his complaint, many things which caused the accident resulting in his injury. It was not necessary, in order to entitle him to recover, that he prove all the causes which brought about his injury. This leads to the inquiry, do the answers to the interrogatories preclude a recovery upon every branch? The answers to the interrogatories negative the allegations of the complaint as to the air brake, the construction of the fruit car, the grade of the track, and the speed of the train; hence the general verdict cannot stand upon either of these branches. It is clear, therefore, that the general verdict, if it can be sustained at all, must rest upon some other charge in the complaint. The remaining charges are. “The railway track, at the place where the car so ran off, was imperfectly and negligently fastened to the cross-ties. The cross-ties were rotten, and insufficient by reason thereof to hold the spikes and other fastenings by which the rails were held to said ties. Said railroad embankment was not ballasted sufficiently to hold said ties in place. Said cross-ties were so rotten that they at once broke in small pieces when said cars ran off the rails and upon said ties, and thereby threw said cars off the railway embankment, and turned said cars over, as aforesaid. Said fruit car was not furnished with an air brake, but, on the contrary, had only a hand brake, and that of improper material, and so constructed that it dropped down beneath said car immediately before said car went off the track, and dropped upon said cross-ties on said track, and thereby jerked said ties out of place, and displaced the rails attached thereto, and threw said fruit car, and the car in which plaintiff was riding, as aforesaid, off the said track, as aforesaid.”

The interrogatories propounded by the plaintiff, bearing upon these questions are as follows: “Interrogatory 4. Was said fruit car furnished with a hand brake negligently attached thereto, so that one of the shoes thereof dropped off, and the brake...