Harmon v. Foran

• Decision Date: 18 May 1911
• Docket Number: 7,200
• Parties: HARMON, RECEIVER, v. FORAN
• Court: Indiana Appellate Court

94 N.E. 1050

48 Ind.App. 262

HARMON, RECEIVER, v. FORAN

No. 7,200

Court of Appeals of Indiana

May 18, 1911

Rehearing denied June 29, 1911, Reported at: 48 Ind.App. 262 at 270.

From Superior Court of Marion County (73,384); Pliny W Bartholomew, Judge.

Action by John Foran against Judson Harmon, as receiver of the Cincinnati, Hamilton and Dayton Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed.

John B Elam, J. W. Fesler and Harvey J. Elam, for appellant.

Thomas D. McGee, John W. Holtzman and Lewis A. Coleman, for appellee.

OPINION

IBACH, J.

Action for damages against Judson Harmon, as receiver of the Cincinnati, Hamilton and Dayton Railroad Company, for personal injuries received by John Foran at a street crossing.

The case was tried on a single paragraph of complaint, in which it was alleged that appellant, in violation of various ordinances of the city of Indianapolis, was negligently backing an engine at night, without a light, without a man on the footboard, without ringing the bell, and at excessive speed, whereby appellee was caught at a crossing and injured. A demurrer to this paragraph, for want of facts, was overruled, and the issues formed by filing an answer in general denial. The trial was by jury, a general verdict against appellant for $ 3,500 was returned, and interrogatories propounded by both appellant and appellee were answered. Judgment was rendered on the verdict.

Errors relied on for reversal are (1) overruling appellant's motion for judgment on answers to the interrogatories notwithstanding the general verdict, and (2) overruling appellant's motion for a new trial.

There are two main propositions to be considered: Whether the answers to interrogatories show that appellee was guilty of contributory negligence, and whether the court erred in giving to the jury certain instructions.

Eliminating certain interrogatories that call for conclusions, the jury found, by answers to other interrogatories, the following facts: Appellee was walking north on the west sidewalk of West street. On each side of the street was a high wall, and an embankment was filled in back of the west wall, extending westward. These walls and the embankment were a part of the track elevation work, then in course of construction. The track on which appellee was standing when struck was the first track north of the walls, and ran east and west, and its south rail was seven feet from the perpendicular north end of the wall. North of this track were other tracks. The track on which appellee was standing when struck curved to the south, west of West street. At the south end of the walls, before proceeding between them, appellee looked in each direction for trains on the tracks north of the walls. When he came to the north end of the west wall there was a train, that was making considerable noise, passing on one of the tracks just north of the first track. Before he attempted to cross the tracks north of the walls, he looked and listened for trains and engines. In attempting to cross the first track he was struck by an engine moving backwards toward the east at a speed of from five to seven miles an hour, with bell ringing, and with a light burning on both front and rear. There were three men in the cab of the engine, but none on the rear end of the tender. The noise of the other engine that had passed prevented appellee from hearing the engine that struck him. The embankment and curve of the track to the south prevented him from seeing the engine. He looked to the west along the track after passing the wall, and before he reached the place where he was struck. From the point where appellee was struck, an engine could not be seen two hundred feet away, if it was approaching from the west. Appellee could not have seen the engine by looking toward the west at any time before he was struck. The night was dark and rainy. Appellee was familiar with the crossing, having passed it many times for three or four months. After passing the walls he walked in a northeasterly direction to near the center of West street, and during this time was giving his attention to the engine that was passing on the track north of the first track. He listened when near the south rail of the first track, and as he placed his foot upon the rail he turned to the west, and was struck by the end of the tender. The speed of the engine did not influence his movements, but he did not approach the track without regard to the engine. He did not know the engine was approaching until it struck him. There was no evidence showing how far the engine was from the north end of the west wall, while plaintiff walked from that point to the point where he was struck, nor as to how fast he was walking when he was approaching the track, nor as to the condition of his eyesight or hearing.

In the case of McCoy v. Kokomo R., etc., Co. (1902), 158 Ind. 662, 64 N.E. 92, the Supreme Court said: "In passing on a motion for judgment notwithstanding the verdict, it should be borne in mind that the verdict necessarily covers the whole issue, and that it solves every material fact against the party against whom it is rendered. To enable the latter successfully to interpose the special findings of the jury upon particular questions of fact, as a reason for judgment in his favor, he must, at least, have special findings that stand in such clear antagonism to the general verdict that the two cannot coexist. * * * It is required that every reasonable intendment shall be indulged in favor of the general verdict, and that, on the other hand, the court shall strictly, and without favorable intendment, construe the answers to interrogatories against the moving party. * * * It is not permitted that the court, in ruling on a motion for judgment based on the answers to interrogatories, should regard the evidence that was introduced upon the trial. * * * The motion should be refused where the antagonism between the verdict and the answers to interrogatories is not such, on the face of the record, as to be beyond the possibility of being removed by any evidence legitimately admissible under the issues. * * * As the motion that was made was for judgment upon the answers notwithstanding the verdict, it was required, in order to justify the sustaining of the motion, that the answers, in and of themselves, should be sufficient, when strictly construed, to warrant, in view of the issues, a judgment in favor of the moving party."

In the light of this able and complete enunciation of the principles governing a motion for judgment on the answers to interrogatories, we shall consider the present case. We find that the answers to the interrogatories sustain...