General American Tank Car Corporation v. Melville

• Decision Date: 06 January 1925
• Docket Number: 24,109
• Citation: 145 N.E. 890,198 Ind. 529
• Parties: General American Tank Car Corporation v. Melville
• Court: Indiana Supreme Court

145 N.E. 890

198 Ind. 529

General American Tank Car Corporation v. Melville

No. 24,109

Supreme Court of Indiana

January 6, 1925

Rehearing Denied December 10, 1926.

1. NEGLIGENCE.---Question of contributory negligence was for the jury.---What prudence and the exercise of due care would require a person to do in an interval of a few seconds to guard against injury by the negligent acts of another would be peculiarly a question for the jury. p. 536.

2 TRIAL.---Conflicting answers to interrogatories destroy one another and, therefore, cannot control the general verdict p. 536.

3. APPEAL.---Where the facts showed defendant's negligence and plaintiff's freedom therefrom, verdict for plaintiff will not be disturbed.---Where the facts were such that reasonable men might conclude that negligence of the defendant caused the injury sued for and that no negligence of the plaintiff contributed thereto, a decision of the jury and the trial court that the defendant was liable for damages therefor will not be disturbed on appeal. p. 537.

4. TRIAL.---Defendant not harmed by refusal to give further instructions as to contributory negligence.---Where the court correctly instructed the jury that if any negligent acts of plaintiff contributed to or helped to bring about his injury he could not recover, the defendant was not harmed by the court's refusal to give further instructions on that subject. p. 537.

5. TRIAL.---Trial court not bound to give requested instructions to same effect as ones given although in different language.---Where the court instructed the jury that the gist of plaintiff's cause of action was negligence of the defendant and that plaintiff must establish defendant's negligence by a preponderance of the evidence it was not bound to give requested instructions to the same effect but in different language. p. 537.

6. TRIAL.---Refusal of inaccurate instruction proper.---In an action for personal injuries because of defendant's negligence, where the negligence charged was the manner and speed of operating defendant's train and failure to guard against accidents by warning persons approaching defendant's railroad tracks, a requested instruction stating that there was "but one charge of negligence" was properly refused, as it was inaccurate. p. 537.

7. APPEAL.---A judgment will not be reversed for giving an inaccurate instruction where it clearly appears that it did not affect the result. p. 537.

8. APPEAL.---Mere assertion that requested instructions correctly stated the law and should have been given presents no question.---The mere assertion in appellant's brief that each one of fifteen instructions correctly stated the law on some specific issue involved in the case, and therefore should have been given, without attempting to show how any particular instruction applied to any specific issue, presents no question for review. p. 539.

9. NEGLIGENCE.---Burden of proving contributory negligence on defendant in personal injury cases.---Under the provisions of 380 Burns 1926, the burden of proving contributory negligence in an action for personal injuries is on the defendant. p. 539.

10. TRIAL.---Instruction held not to disparage testimony of defendant's employees.---An instruction that in weighing the testimony of the witnesses, the jury could take into consideration that the plaintiff was an interested party in the suit and that it could also take into consideration that some of defendant's witnesses were employees thereof, but not to disregard their testimony because they were in the defendant's employ, did not disparage such testimony or prejudice the defendant. p. 539.

11. DAMAGES.---Evidence justified an instruction that jury could consider both physical and mental pain that plaintiff had suffered.---In an action for personal injuries, evidence that plaintiff's left leg was crushed off and left lying in the street, that he was otherwise severely injured and was in the hospital four weeks, that he suffered pain in his head and legs, that his right ankle had become crooked and was still swollen at the time of the trial, that he had not worked any since the injury, and evidence of other similar facts, justified an instruction that the jury might consider both the physical and mental pain and suffering that he had endured and would endure. p. 540.

12. DAMAGES.---Thirty-five thousand dollars damages for leg crushed off and other severe injuries held not excessive.---On appeal, in the absence of a showing that the jury was influenced by prejudice, partiality or corruption in fixing the amount of damages awarded to a plaintiff, the court will not set aside the verdict because of excessive damages. p. 540.

From LaPorte Superior Court; Harry L. Crumpacker, Judge.

Action by Herbert Melville against the General American Tank Car Corporation. From a judgment for plaintiff the defendant appeals.

Affirmed.

William J. Whinery, Stein, Mayer & David, Gavit, Hall, Smith & Gavit and Darrow, Rowley & Shields, for appellant.

William J. McAleer, Francis J. Dorsey, Gerald A. Gillett and Perry A. Chapin, for appellee.

Ewbank J. Myers, J., absent.

OPINION

Ewbank, J.

Plaintiff (appellee) recovered a judgment against defendant (appellant) for $ 35,000 damages on account of personal injuries caused by a collision between a street car on which plaintiff was riding as conductor and a train of railroad cars pushed by a locomotive engine that defendant was propelling along a switch track across a public street in the city of East Chicago in which the street railroad was operated, while moving the cars from one part of its factory yards to another part. Overruling defendant's motion for judgment on the answers to interrogatories, but rendering judgment against it on the general verdict, and overruling defendant's motion for a new trial are assigned as errors.

The issues were formed by an answer of general denial to a complaint in one paragraph. The complaint alleged, in substance, that defendant was a corporation; that it owned and operated a large manufacturing plant within the city of East Chicago; that certain railroad corporations, as to whom the action was dismissed before verdict, owned and maintained railroad tracks through defendant's said plant; that defendant and said railroad corporations jointly owned managed and controlled locomotive engines that were operated over said tracks; that defendant, on October 6, 1920, was engaged in the manufacture of railroad tank cars, and used said locomotive engines to haul, move and set them in and about its said plant, which extended along each side of Parish avenue, a public street that crossed it, running north and south; that for 500 feet along each side of Parish avenue, defendant maintained buildings extending out to the street line; that, between said buildings, defendant had two sets of railroad tracks, forty-three feet apart, that ran east and west across Parish avenue and connected the parts of defendant's factory plant on either side of the avenue; that plaintiff was employed as conductor on a street car which his employer operated in and along Parish avenue on a single track laid therein; that, as such conductor, it was his duty to run ahead of the street car when it came north along Parish avenue and reached the south railroad tracks, and to ascertain whether any locomotives or cars were approaching thereon, and if there were none, to go to the north tracks and learn if any were approaching on those tracks, and if both sets of tracks were seen to be safe for the passage of the street car over the crossing, to signal the motorman to bring it forward across said tracks; that all this had to be done while the street car stood south of the southernmost set of railroad tracks because the street car was longer than the distance (alleged to be forty-three feet) from one set of tracks to the other; that on said day, when his car was stopped for said purpose, plaintiff alighted and went ahead to the south tracks, and then to the north tracks, and looked both to the east and west but saw no locomotives or cars approaching on either set of tracks, and did not hear any signal or warning given by anyone of the approach of any such locomotives or cars, and that none were then approaching within the distance he could see along said railroad tracks; that he thereupon looked south and signaled the motorman to come ahead with the street car, in compliance with which signal, the motorman proceeded to run it forward over said crossings; that as the street car approached the northernmost railroad track, plaintiff climbed upon its rear platform, as it was his duty to do; that "just as the rear platform of said street car had reached the northernmost of said system of tracks, said defendants carelessly and negligently, and without any warning whatsoever, suddenly shunted and caused to be propelled a certain tank car belonging to said defendant along said northernmost tracks from the east to the west over said Parish avenue, whereby the said tank car crashed into and collided with the rear platform of said street car while plaintiff was thereupon"; that defendant's tracks curved sharply immediately inside of its property line, so that the view along them toward the east was obstructed and cut off by buildings and structures of defendant's at not more than sixty-three feet east of the north crossing, and that "to shunt and propel a tank car over said crossing as above alleged without giving any warning whatsoever and with plaintiff's view obstructed as above alleged was careless and...