Goings v. Davis

• Decision Date: 21 November 1923
• Docket Number: No. 11651.,11651.
• Citation: 82 Ind.App. 231,141 N.E. 473
• Parties: GOINGS v. DAVIS, Director General of Railroads, as Agent.
• Court: Indiana Appellate Court

82 Ind.App. 231

141 N.E. 473

GOINGS

v.DAVIS, Director General of Railroads, as Agent.

No. 11651.^*

Appellate Court of Indiana, Division No. 1.

Nov. 21, 1923.

Appeal from Circuit Court, Sullivan County; Wm. H. Bridwell, Judge.

Action by Fred Goings against James C. Davis, Director General of Railroads, as Agent. Judgment for defendant, and plaintiff appeals. Affirmed.

Lindley & Bedwell, of Sullivan, and T. Morton McDonald, of Princeton, for appellant.

Beasley, Douthitt, Crawford & Beasley, of Terre Haute, and Hays & Hays, of Sullivan, for appellee.

BATMAN, J.

This is an action by appellant against appellee to recover damages for personal injuries, alleged to have been sustained by the former while in the employ of the latter, in railroad service. After the joining of issues on the complaint, the cause was submitted to a jury for trial. At the conclusion of appellant's evidence, each party filed a motion requesting the court to instruct the jury to return a verdict in his favor. Thereupon the court withdrew the cause from the jury, found for appellee, and rendered judgment accordingly. Appellant filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal.

[1] It is well settled that where a cause is submitted to a jury for trial, and each party, at the conclusion of appellant's evidence or at the conclusion of all the evidence, requests the court to instruct the jury to return a verdict in his favor, such action is, in effect, a joint request for the withdrawal of the cause from the jury, and for the submission of the same to the court for its decision. Deeter v. Burk (1915) 59 Ind. App. 449, 107 N. E. 304;Indianapolis, etc., Co. v. Vaughn (1917) 65 Ind. App. 581, 117 N. E. 673;Kleine v. Houk (1922, Ind. App.) 134 N. E. 872. It follows, therefore, that the court did not err in refusing to give either of the requested instructions, or in withdrawing the case from the jury on the implied request of the parties, and rendering a decision on the issues submitted for trial.

[2] The only other reasons for a new trial contained in appellant's motion therefor are that the decision of the court is not sustained by sufficient evidence, and is contrary to law. An examination of the record disclosed some evidence to sustain the decision of the court. This, as has often been held, is sufficient on appeal. Indianapolis, etc., Co. v. Vaughn, supra; Toledo, etc., R. Co. v. Milner (1916) ...