Evansville & T.H.R. Co. v. Hoffman

• Citation: 118 N.E. 151,67 Ind.App. 571
• Decision Date: 20 December 1917
• Docket Number: No. 9466.,9466.
• Court: Court of Appeals of Indiana
• Parties: EVANSVILLE & T. H. R. CO. v. HOFFMAN.

67 Ind.App. 571

118 N.E. 151

EVANSVILLE & T. H. R. CO.

v.HOFFMAN.

No. 9466.

Appellate Court of Indiana, Division No. 1.

Dec. 20, 1917.

Appeal from Circuit Court, Daviess County; James W. Ogdon, Judge.

Action by George Hoffman against the Evansville & Terre Haute Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed.John E. Iglehart, Edwin Taylor, and Eugene H. Iglehart, all of Evansville, Gardiner, Tharp & Gardiner, of Washington, Ind., and Homer T. Dick, of Chicago, Ill., for appellant. James M. House and Le Roy M. Wade, both of Vincennes, and A. J. Padgett and Alvin Padgett, both of Washington, Ind., for appellee.

BATMAN, P. J.

Appellee brought this action in the court below to recover damages for personal injuries, which he alleged he received through the negligence of appellant in the operation of a switch engine and certain empty freight cars on one of its side tracks in the city of Vincennes, Ind., thereby causing a collision with a street car in which he was a passenger. Issues were formed, trial had, and judgment rendered for appellee. On appeal the judgment was reversed because of errors in instructions. Evansville, etc., R. Co. v. Hoffman (1914) 56 Ind. App. 530, 105 N. E. 788. A second trial of the cause was had in which a verdict was returned in favor of appellee, and judgment rendered accordingly. Appellant filed its motion for a new trial, which was overruled, and has assigned such ruling of the court as the error on which it relies for reversal. Among the reasons on which such motion for a new trial is based is the action of the court in giving instructions Nos. 5, 8, 9, 10, 11, and 12 on its own motion, which we will consider in the order named.

[1][2][3] Appellant contends that the giving of said instructions Nos. 5 and 8 was error, for the reason that they each hypothesize the finding of negligence, proximate cause, and consequent injury and damages, and thereon direct the jury to return a verdict for appellee, but fail to hypothesize freedom from contributory negligence on appellee's part. We cannot concur in this contention. The court by the instructions in question was dealing alone with the complaint and the right of appellee to recover on the proof of certain facts alleged therein. By other instructions the court informed the jury that appellee could not recover unless at the time of the collision and injury he was in the exercise of ordinary care and diligence to avoid injury to himself. The instructions in question cannot be held to be erroneous, because they do not apply to all the separate issues involved in the case, where such issues were covered by other instructions given by the court. Newcastle Bridge Co. v. Doty (1906) 168 Ind. 259, 79 N. E. 485;Indiana, etc., T. Co. v. Keiter (1910) 175 Ind. 208, 92 N. E. 982;Harmon v. Foran (1911) 48 Ind. App. 262, 94 N. E. 1050, 95 N. E. 597;Home Tel. Co. v. Weir (1913) 53 Ind. App. 466, 101 N. E. 1020. Moreover, there was no evidence on the trial of said cause that tended to prove that appellee's negligence contributed to his alleged injuries. Therefore the omission from such instruction of any reference to such negligence on the part of appellee, if error, was harmless. Kneefel v. Atkins (1907) 40 Ind. App. 428, 81 N. E. 600;Neely v. Louisville, etc., Co. (1913) 53 Ind. App. 659, 102 N. E. 455;Indianapolis, etc., R. Co. v. Waddington (1907) 169 Ind. 448, 82 N. E. 1030.

[4][5][6] Appellant also contends that the court erred in giving instruction No. 9, the objectionable portion being as follows:

“The persons who had control of the street car, which collided with the defendant's car on the crossing, were in duty bound to exercise ordinary care and diligence in running said street car upon and over said crossing, in such manner as to avoid causing any injury to passengers on said street car.”

It insists that this statement renders such instruction erroneous, inasmuch as the street car company, whose passenger appellee was at the time of the collision, owed him the highest degree of care, and that it was harmful because the duties owed by the train crew depended somewhat upon the rights and duties of the street car crew, as the former had a right to believe, up to the moment of perceiving the contrary, that the latter would perform its duties, without negligence, and had a right to rely and act on such belief. If it be conceded that such street car company owed appellee a higher degree of care than was stated in such instruction, still it would not follow that its giving was harmful. On the trial of the cause the jury was required to determine whether appellant's train crew was guilty of any negligence in the operation of its said engine and cars which proximately contributed to appellee's alleged injuries. Under the law appellant owed appellee, and the company in whose street car he was a passenger at the time of the alleged collision, the same duty as it owed pedestrians and the drivers of private vehicles, viz. ordinary care and diligence not to inflict injury on them in the operation of its engine and cars. Vincennes T. Co. v. Curry (1915) 59 Ind. App. 683, 109 N. E. 62;N. Y., etc., R. Co. v. N. J., etc., R. Co., 60 N. J. Law, 52, 37 Atl. 627, 38 L. R. A. 516;Klinger v. Union T. Co., 92 App. Div. 100, 87 N. Y. Supp. 864. The street car company owed the railroad company only ordinary care to avoid the collision in question, and that is all the care the railroad company had a right to rely on in the operation of its engine and cars. It could not rely on the street car company discharging a higher degree of care towards its passengers, and thus relieve itself from liability to such passengers, for a failure to exercise ordinary care toward them. Dean v. Cleveland, etc., R. Co. (1917) 115 N. E. 92;Jacowicz v. Delaware, etc., R. Co., 87 N. J. Law, 273, 92 Atl. 946, Ann. Cas. 1916B, 1222. It follows that the giving of such instruction, if error, was harmless.

[7][8] Appellant also predicates error on the action of the court in giving said instruction No. 10 by the use therein of the following statement:

“As to whether or not the conditions existed as stated in this instruction are all questions of fact which you are to determine under all the evidence in the case.”

The specific objection is directed to the words italicized by us. Preceding the use of the sentence quoted, the instruction treats of the respective rights of the railroad company and the street car company with reference to the crossing in question, including the duty of those in charge of such street car to stop the same and permit the cars of appellant to pass over such crossing under certain conditions. It is apparent from the connection in which the words in question are used that the jury could not have understood that they were to consider any evidence, in determining the questions, to which such instruction was addressed, except such as properly bore thereon. Pittsburgh, etc., R. Co. v. Reed (1909) 44 Ind. App. 635, 88 N. E. 1080;Cohen v. Reichman (1913) 55 Ind. App. 164, 102 N. E. 284. Moreover, appellant has failed to point out any evidence which in our judgment could have improperly influenced the jury in determining the question covered by such instruction, had it been considered. The error, if any, was therefore harmless. Mosker v. Leonard (1911) 48 Ind. App. 642, 96 N. E. 485;Sanitary Can Co. v. McKinney (1913) 52 Ind. App. 379, 100 N. E. 785;Inland Steel Co. v. Gillispie (1914) 181 Ind. 633, 104 N. E. 76.

Appellant claims that said instruction No. 11 invades the province of the jury, and is therefore erroneous. This instruction only purports to advise the jury concerning the duties of the respective companies toward each other, with reference to stopping at the crossing in question, and was correct within the scope it assumed to cover. When read in connection with the preceding instructions bearing on the same subject, we do not believe it is subject to the objection made by appellant.

[9][10][11][12] By said instruction No. 12 the jury was told, in substance, that notwithstanding the fact that there was no statute in force in Indiana which required appellant to have its cars equipped with air brakes, and to use the same in stopping its cars, when switching the same within the corporate limits of the city of Vincennes, still, if they found from the evidence that at the time of the collision in which appellee received his alleged injuries appellant was so engaged, with an engine and cars so equipped, that it was proper in the practical conduct of such switching to use said air brakes to facilitate the stopping of its cars before they collided with the street car in which appellee was a passenger, but appellant's servants in charge thereof failed to use such air brakes for such purpose, they could consider such failure, in connection with all the other evidence in the case, to determine the fact as to whether or not appellant exercised ordinary care and diligence to avoid the collision of the cars and the injury to appellee. Appellant contends that there was no law requiring it to equip its cars with air brakes and use the same to facilitate stopping while engaged in a switching operation, and hence the giving of such instruction was error. It may be conceded that there was no statute requiring appellant to so equip its cars and use the same for such purpose, but it does not follow that it was not appellant's duty to use the air brakes with which it is conceded such cars were equipped. Whether it was its duty so to do depended on whether such acts were reasonably necessary in the discharge of its duty to exercise ordinary care and diligence to avoid such collision and injury to appellee, and was a question for the determination of the jury. Pennsylvania Co. v. Hensil (1880) 70 Ind. 569, 36 Am. Rep. 188;Evansville, etc., R. Co. v. Hoffman (1914) 56 Ind. App. 530, 105 N. E. 788;United States Cement...