Drolet v. Pennsylvania R. Co.

• Decision Date: 10 February 1960
• Docket Number: No. 19011,No. 1,19011,1
• Citation: 164 N.E.2d 555,130 Ind.App. 549
• Parties: Ann DROLET, Administratrix of the Estate of Edward Drolet, Deceased, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, Appellee
• Court: Indiana Appellate Court

Page 555

164 N.E.2d 555

130 Ind.App. 549

Ann DROLET, Administratrix of the Estate of Edward Drolet Deceased, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, Appellee.

No. 19011.

Appellate Court of Indiana, Division No. 1.

Feb. 10, 1960.

Crumpacker, Gemberling & Enslen, Owen W. Crumpacker, Theodore M. Gemberling, Lowell E. Enslen, George V. Burbach, Hammond, for appellant.

George W. Douglas, Valparaiso, Barrett, Barrett & McNagny, Phil M. McNagny, Ft. Wayne, for appellee.

AX, Judge.

Appellant, plaintiff below, brought a wrongful death action against appellee, defendant below, for the death of her husband who was killed at a grade crossing when the car driven by her said husband was hit by appellee's train. Appellant charged that the proximate cause of the collision in which her said husband was killed was one or more acts of negligence of appellee through its agents, employees and servants, acting within the scope of their employment in one or more of the following particulars, to wit:

(a) Appellee carelessly and negligently failed to give any signal, notice or warning of the approach of said train.

(b) Appellee carelessly and negligently failed to sound the whistle on its engine at any time while approaching the crossing.

(c) Appellee carelessly and negligently failed to sound the whistle on its engine distinctly not less than three times beginning not less than eighty rods from the crossing.

(d) Appellee carelessly and negligently failed to ring the bell on its engine at any time while approaching the crossing.

(e) Appellee carelessly and negligently failed to ring the bell on its engine continuously not less than eighty rods from the crossing.

(f) Said train was traveling at a high and excessive rate of speed to wit; sixty miles per hour.

(g) Appellee carelessly and negligently failed to keep a lookout for those lawfully on the highway and particularly the decedent when approaching said crossing. Appellant asked judgment for $15,000 as a dependent widow.

Appellee filed answer in three paragraphs, the first paragraph amounting to an answer of denial to the material averments of appellant's complaint; the second paragraph charging appellant's decedent with contributory negligence by entering upon appellee's tracks without using ordinary care for his safety and by failing to look and listen for the appellee's train at a time and place when, in the exercise of ordinary care, he could have discovered its approach in time to avoid the collision complained of; and the third paragraph charging appellant's decedent with contributory negligence by failing to stop his automobile within fifty feet but no closer than ten feet from the nearest track of appellee's railroad before crossing at a time when appellee's train was plainly visible and in hazardous proximity to such crossing, which act amounted to a violation of the statutes of the State of Indiana governing the operation of motor vehicles. Burns' Ann.St. § 47-2114.

The cause was submitted to a jury which found for the appellee, and judgment was entered accordingly.

Thereafter, appellant filed its timely motion for new trial specifying several grounds. This appeal followed the overruling of said motion with the assignment of error that the trial court erred in overruling appellant's motion for a new trial.

The first four grounds in the motion for new trial were substantially that the verdict and judgment were not sustained by sufficient evidence and were contrary to law.

Evidently, being cognizant of the well-settled rule of law that on appeals from a negative verdict, the plaintiff cannot assign as error the fact that the verdict was not sustained by sufficient evidence, appellant made no attempt to argue this ground of error. See City of Angola, Indiana v. Hulbert, 1959, Ind.App., 162 N.E.2d 324, and cases cited therein. Appellant also failed to press any argument in her briefs that the verdict or judgment was contrary to law. Hence, under the rules of this court and our numerous court decisions, this cause of error is waived.

The remaining specifications of grounds in appellant's motion for new trial which are argued were specifications numbered 5 through 23 inclusive, all of which were for errors of law occurring at the trial in the giving of each of the appellee's separate instructions numbered 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 18, 20, 21, 26, 28, 29, 30, 31, and 32.

Suffice it to say, inasmuch as the evidence concerning the alleged acts of negligence on the part of the appellee and the alleged acts of contributory negligence on the part of appellant's decedent was disputed, the cause in the absence of any error of law occurring at the trial was properly submitted to the jury for the determination of the facts. For that reason we find it unnecessary to summarize in this opinion the evidence that was introduced at the trial, confining our attention to the matters embraced in the instructions complained of by appellant, in order to determine whether or not any of the appellee's instructions given by the court and objected to by appellant were so objectionable and erroneous as to result in the appellant being deprived of a fair and impartial trial and of a substantial verdict.

In accordance with Rule 2-17(d) of the Supreme and Appellate Courts, appellant set forth in her brief all of the instructions given or tendered and refused which have a bearing upon the questions raised. In light of the argument of appellant that 'the trial Court gave and read to the jury numerous and repetitious defendant's instructions over the objections of the Administratrix, which said repetitious instructions were tantamount to directing the jury to return a verdict for the defendant and consequently from which this appeal is taken', we have carefully read and examined each and every instruction given or tendered and refused, together with all of appellant's specific objections to instructions of appellee tendered and given by the court, in order to help us in our determination of whether or not appellant by such instructions given was prevented from having a fair and impartial trial.

Before considering appellant's various contentions, we reviewed carefully some of the following well-established general rules relative to propriety of instructions which we used as a guide and which we believe are pertinent to the conclusion reached herein:

'The purpose of instructing jurors is to advise them of the particular questions they are to determine, and to inform them as to the law and how to apply it to the facts as they find the facts to be from the evidence. Neese v. Boatright (1954), 124 Ind.App. 680, 118 N.E.2d 510.' Flanagan, Wiltrout & Hamilton's, Indiana Trial & Appellate Practice, § 1510, p. 63, par. 14 of Supp.

'Erroneous instructions constitute reversible error only when they have influenced the verdict. New York, C[hicago]. & St. L[ouis]. R. Co. v. Henderson (1957), 237 Ind. 456, 146 N.E.2d 531, rehearing denied 237 Ind. 456, 147 N.E.2d 237.' Flanagan, Wiltrout & Hamilton's Indiana Trial & Appellate Practice, § 1510, p. 63, par. 18 of Supp.

'The giving of erroneous instructions is presumed prejudicial, and the burden is on appellee to show by the record that appellant was not harmed thereby.' Hatton v. Hodell Furniture Co., 1920, 72 Ind.App. 357, 125 N.E. 797.

'Duplication of instructions is not reversible error where there is nothing in the instructions or record to indicate that harm resulted. Powell v. Ellis (1952), 122 Ind.App. 700, 105 N.E.2d 348.' Flanagan, Wiltrout & Hamilton's, Indiana Trial & Appellate Practice, § 1510, p. 61, par. 5 of Supp.

'If the instructions considered as a whole fully and fairly instruct the jury, error in any particular instruction will not justify a reversal unless it is such as to vitiate the whole charge to the jury. The charge is vitiated only when the instruction is so erroneous that it must be concluded the jurors have been misled as to the law of the case. Stull v. Davidson (1955), 125 Ind.App. 565, 127 N.E.2d 130.' Flanagan, Wiltrout & Hamilton's, Indiana Trial & Appellate Practice, § 1510, p. 62, par. 6 of Supp.

'Instructions given in a case must be considered as a whole and with reference to each other and not as isolated individual instructions. Bain v. Mattmiller (1938), 213 Ind. 549, 13 N.E.2d 712; Carter v. Aetna Life Ins. Co. (1940), 217 Ind. 282, 27 N.E.2d 75; Hough v. Miller (1942), 112 Ind.App. 138, 44 N.E.2d 228; H. E. McGonigal, Inc. v. Etherington (1948), 118 Ind.App. 622, 79 N.E.2d 777.' Flanagan, Wiltrout & Hamilton's, Indiana Trial & Appellate Practice, § 1510, p. 238, par. 6.

'All the law of the case need not be stated in one instruction; it is sufficient if considering the instructions as a whole the jury has been fully and fairly instructed. Chmielewski's Estate v. Chmielewski (1936), 102 Ind.App. 20, 200 N.E. 747; Hoeppner v. Saltzgaber (1936), 102 Ind.App. 458, 200 N.E. 458; Gibson v. Johnson (1939), 106 Ind.App. 103, 14 N.E.2d 337; Coca Cola Bottling Works [of Evansville] v. Williams (1942), 111 Ind.App. 502, 37 N.E.2d 702; H. E. McGonigal, Inc. v. Etherington (1948), 118 Ind.App. 622, 79 N.E.2d 777; Hamling v. Hildebrandt (1949), 119 Ind.App. 22, 81 N.E.2d 603.' Flanagan, Wiltrout & Hamilton's, Indiana Trial & Appellate Practice, § 1510, p. 239, par. 7.

Keeping in mind these above general propositions of law, we considered whether or not any of the instructions given by the court and specifically objected to by the appellant prevented the appellant from having a fair and impartial trial.

From a careful study of appellant's brief and after hearing the oral argument advocated by appellant's counsel, we are of the opinion that appellant's main contention is that under the evidence the appellant was clearly entitled to a verdict, but that she was deprived of that verdict by the repetitious and argumentative instructions on contributory negligence given by the trial court.

Although ...