Eckhart v. Marion, Bluffton & Eastern Traction Company
| Decision Date | 16 June 1915 |
| Docket Number | 8,615 |
| Citation | 109 N.E. 224,59 Ind.App. 217 |
| Parties | ECKHART v. MARION, BLUFFTON AND EASTERN TRACTION COMPANY |
| Court | Indiana Appellate Court |
From Jay Circuit Court; James J. Moran, Judge.
Action by Clara Eckhart against the Marion, Bluffton and Eastern Traction Company. From a judgment for defendant, the plaintiff appeals.
Affirmed.
A. L Sharpe and Frank W. Gordon, for appellant.
Jacob F. Denney, Abram Simmons and Frank C. Dailey, for appellee.
OPINION
Appellant, a mature woman, brought this action to recover for personal injuries inflicted on her by one of appellee's cars at a flag station in Wells County. The averments of the complaint material to a determination of the questions involved are in substance that on January 1, 1907, appellee was operating a traction line between Marion and Bluffton; that on said day early in the morning, and before daylight, appellant went to stop 11 on said line near which she lived, for the purpose of taking passage to Bluffton on one of appellee's cars; that cars stopped at that place for the purpose of receiving passengers only on signal from such passengers to that end; that soon after she reached the stop, and while it was yet dark the car approached; that "said car was not provided with a headlight as it should have been, and she signalled said car to stop that she might embark thereon, and that after signalling said car to stop, she stepped aside from the usual stopping place of the company's cars where they made stops at said station, and where she was out of the way of said cars when they did stop at their usual stopping place at said station, believing, as she had a right to believe, that said car would stop at said station and let her embark thereon; that the car which she had so signalled did not stop at said station * * * but * * * ran by her at a very high rate of speed, and * * * caused her cloak which she was then wearing * * * to be drawn towards said car, and through no fault of plaintiff, but due entirely to the high rate of speed at which defendant's servant was driving said car and the negligence of said servant to stop said car where he properly should, her cloak was caught by some part of said car as the same went swiftly by her", and she was thereby thrown to the ground and injured; "that had said car been stopped, as it was the duty of defendant to stop it, at the station aforesaid where it should have been stopped after she had signalled, and where she had a right to believe that it would be stopped", she would not have been injured; "that the injuries so received were due to the high rate of speed at which said car was so negligently driven by defendant's servant past said station after being signalled to stop by plaintiff and running past her at such high rate of speed as to cause her said cloak to be drawn into and caught by said car, and the further fact that said car was so negligently driven in the nighttime without being provided with a headlight or some other device by which the motorman in charge of said car would see persons who gave him signals to stop."
A trial resulted in a general verdict for appellant by which her damages were assessed at $ 850. With the general verdict the jury returned answers to interrogatories. Appellee's motion for judgment on the answers notwithstanding the general verdict was sustained and judgment rendered accordingly. The only error assigned and not waived relates to the ruling on such motion. It is urged however that this alleged error is not properly assigned. It is in form as follows: "The court erred in awarding judgment to the appellee on the answers to the interrogatories propounded to the jury trying this cause notwithstanding the general verdict." The action of the court which appellant evidently intends to challenge by such assignment is the ruling in sustaining such motion. The motion being sustained, judgment followed as a matter of course, and without any additional ruling. The assignment should have been based, however, on the ruling rather than on the rendering of the judgment. It has been held a number of times that an assignment that the court erred in rendering judgment for or against a party presents no question for review. Seisler v. Smith (1898), 150 Ind. 88, 46 N.E. 993; Hill v. Indianapolis, etc., R. Co. (1903), 31 Ind.App. 98, 67 N.E. 276; Indiana Bond Co. v. Shearer (1900), 24 Ind.App. 622, 57 N.E. 276. As indicated, in the mere act of rendering judgment, the court ordinarily is not required to rule. That judgment should be rendered for the one party or the other is determined from some prior ruling of the court, and generally from a succession of rulings. That the judgment was properly or improperly rendered may depend on the correctness of a number of such prior rulings. It follows that ordinarily it cannot be ascertained from a general assignment challenging the judgment what particular ruling the appellant desires to challenge. Such an assignment is therefore not sufficiently specific to satisfy the statute. § 696 Burns 1914, § 655 R. S. 1881. An assignment of error to be sufficient should specify with reasonable certainty the ruling to be reviewed. Baldwin v. Sutton (1897), 148 Ind. 591, 47 N.E. 629, 1067; Chicago, etc., R. Co. v. Barker (1908), 169 Ind. 670, 83 N.E. 369, 14 Ann. Cas. 375. While the assignment here is irregular in form, and not to be commended as a model, taken as a whole we think it refers to a single action of the court, and that there can be no doubt respecting the identity of the ruling intended to be presented for review. We, therefore, hold it to be sufficient. Mesker v. Bishop (1914), 56 Ind.App. 455, 103 N.E. 492, 105 N.E. 644.
The following are the material facts found in answer to the interrogatories: On January 1, 1907, appellee's track extended east and west intersecting a north and south public highway at stop 11. The track extended straight for at least a quarter of a mile west of said stop. On numerous occasions prior to January 1, appellant had taken passage on appellee's cars at that stop. On the morning of that day, she came alone from her home, half a mile south, to said stop for the purpose of taking passage on an east bound car. Arriving at the stop she sat down on the track, but shortly heard the whistle and rumble of the car two miles away, and thereafter continuously heard it approaching until it arrived and she was injured, and during all the time it was running that distance, she knew it was approaching. Although she did not actually see the car on account of the fog and the darkness, until it was within 150 feet of the stop, she rose when it was twenty rods distant, and standing in the center of the track attempted to flag it by the use of her handkerchief. Standing in such position she continued to attempt to flag the car, using no light and no other device but her handkerchief, until it had approached to within 150 feet of the stop, whereupon she ceased her efforts to flag it, and stepped from the track to the south taking a position eighteen inches to two feet south of the south line of the ties of the track, which position she continued to occupy, facing north and in no other direction until she was injured. She chose her own position, and there was nothing to prevent her from standing at a safe distance from the track as the car approached and passed, or to prevent her from standing anywhere she chose in said highway at the time of her injury and theretofore. If appellant had stood at a distance of four or more feet from the track as the car passed she would not have been injured, and there was nothing to prevent her from standing at such distance. The car did not brush against her or strike her, but while she was standing at the place aforesaid, in which place she stood continuously after she stepped from the track, she was wearing a long coat entirely unbuttoned and as the car passed the coat was blown or pulled against the car and caught on some part of it on the south side near the rear end, and she was thereby thrown and injured.
In determining whether the court properly overthrew the general verdict by rendering judgment on the answers to the interrogatories, there are certain allegations of the complaint not specifically covered by the answers that must be considered. The substance of such allegations, if properly pleaded, must be deemed to be established by proof, and should be arrayed in support of the general verdict, if thereby it may be upheld. Wabash R. Co. v. McNown (1913), 53 Ind.App. 116, 99 N.E. 126, 100 N.E. 383. First, however, there are certain statements contained in the complaint that should be eliminated. Thus, the allegation that the car was running at a very high rate of speed states a conclusion rather than a fact, and does not strengthen the complaint. The averment that appellant believed, and had a right...
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