Grand Rapids & I.R. Co. v. Ellison

• Citation: 117 Ind. 234, 20 N.E. 135
• Case Date: February 01, 1889
• Court: Supreme Court of Indiana

117 Ind. 234
20 N.E. 135

Grand Rapids & I. R. Co.
v.
Ellison.

Supreme Court of Indiana.

February 1, 1889.

On rehearing. Fro statement and former opinion, see 18 N. E. Rep. 507.

Chapin & O'Rourke, for appellant. L. M. Ninde and Morris & Barrett, for appellee.

Berkshire, J.

The appellee in this action brought this suit against the appellant to recover damages for injuries to his person, which he avers he sustained without fault on his part while a passenger on one of the appellant's trains, because of the negligence of its servants and employes. The appellant answered the complaint by filing a general denial. The case was tried by a jury, and a general verdict returned for the plaintiff, assessing his damages at $500. The jury also returned into court with their general verdict certain interrogatories which had been submitted to them, and their answers to the said interrogatories. The appellant moved the court for judgment on the answers to the interrogatories, notwithstanding the general verdict. This motion the court overruled. The appellant then moved for a new trial, and this motion was overruled, and judgment rendered on the general verdict for the appellee for the damages assessed, and for costs.

The errors assigned by the appellant are: (1) Error of the court in overruling its motion to strike the amended complaint from the files. (2) Error of the court in overruling the demurrer to the amended complaint. (3) Error of the court in overruling the motion for judgment, notwithstanding the general verdict. (4) Error of the court in overruling the motion for a new trial.

Granting to the appellee permission to file an amended complaint was within the discretionary powers of the court, and, as the record shows no

[20 N.E. 136]

abuse of discretion, there is no available error because of the action of the court in this regard. Section 391, Rev. St. 1881; Durham v. Fechheimer, 67 Ind. 35;Child v. Swain, 69 Ind. 230;Town of Martinsville v. Shirley, 84 Ind. 546;Dewey v. State, 91 Ind. 173.

The second assigned error (that the court erred in overruling the demurrer to the complaint) is not discussed by counsel for appellant, and is therefore waived.

The third alleged error (the overruling of the motion for judgment non obstante veredicto) is earnestly discussed.

In this state it is well settled that if there is any reasonable hypothesis whereby the general verdict and the special finding can be reconciled, judgment must follow the general verdict. Redelsheimer v. Miller, 107 Ind. 485, 8 N. E. Rep. 447; Railroad Co. v. Clifford, 113 Ind. 460, 15 N. E. Rep. 524.

The answer to interrogatory 21 is in conflict with the answer to interrogatory 36. The former is that the engineer of the New York, Chicago & St. Louis Railroad Company did not wickedly and recklessly so run his engine as to cause the collision. The latter answer is that the wicked and reckless conduct of the said engineer was the primary and proximate cause of the collision. The one neutralizes the other; but, if this were not so, the latter answer states a mere legal conclusion. In determining whether the answers to the interrogatories which the jury returned are to control the general verdict, they must be treated as a special verdict, and therefore the jury must return the facts from which the court will draw the conclusions of law.

The answers to interrogatories 39 and 40 find that the appellee saw the engine of the New York, Chicago & St. Louis Railroad approaching the crossing; that thereafter he could have pulled the bell-rope and signaled appellant's engineer of the approaching danger, and, had he done this, the engineer would have received warning in time to have stopped the train, and avoided the accident. The appellee was not bound to do this. As a passenger, it was no part of his province to interfere in any way in the management of the train. Counsel for the appellant cite us to no authority in support of their contention to the contrary,

The answers to interrogatories 5, 7, and 8 find that, by virtue of a contract between the New York, Chicago & St. Louis Railroad Company and the appellant, the latter employed a watchman to manage the signals and regulate the passage of engines and trains over the crossing where the accident occurred; that if the signals and rules adopted by said companies had been observed and obeyed, the accident would not have happened; that the New York, Chicago, and St. Louis Railroad Company paid the watchman.

The answer to interrogatory 6 is that before the accident the officers and managers of the appellant company had no knowledge of the incompetency of the watchman. If the watchman was incompetent, and his incompetence contributed to the injury, it is wholly immaterial as to whether the appellant's officers and managers were or were not informed thereof. He was the employe of the appellant, and it was responsible for his negligence whether he was or was not a competent watchman.

The answers to interrogatories 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 22 only go to show that the engineer of the New York, Chicago & St. Louis Railroad Company was guilty of negligence. They do not exclude the idea of negligence on the part of the appellant's employes.

The answers to interrogatories 1 and 2 find that the appellee was a passenger on a train of cars owned and being run by the appellant on the morning of December 24, 1883, and while being thus carried the accident complained...