Indiana Ry. Co. v. Maurer

• Decision Date: 03 February 1903
• Citation: 66 N.E. 156,160 Ind. 25
• Parties: INDIANA RY. CO. v. MAURER.
• Court: Indiana Supreme Court

160 Ind. 25

66 N.E. 156

INDIANA RY. CO.

v.MAURER.

Supreme Court of Indiana.

Feb. 3, 1903.

Appeal from circuit court, St. Joseph county; W. A. Funk, Judge.

Action by John Maurer against the Indiana Railway Company. From a judgment in favor of plaintiff, defendant appeals. Transferred from the appellate court under section 1337u, Burns' Rev. St. 1901. Reversed.Brick & Bates for appellant. O. M. Cunningham and F. J. L. Meyer, for appellee.

HADLEY, C. J.

Suit by appellee to recover damages for injuries received through the alleged negligence of appellant in operating its street railroad in the city of South Bend. Upon issues joined by the general denial, the jury returned its verdict for appellee for $400, and therewith returned their answers to divers interrogatories propounded by the court. Appellant's motion for judgment upon said answers notwithstanding the general verdict was overruled, as was also its motion for a new trial. The errors assigned and not waived assail the action of the court in overruling these several motions.

1. A general verdict is the solemn declaration of the jury that upon all the facts proved in the case the plaintiff's injury was the direct and proximate result of the defendant's negligence charged in the complaint, and that the plaintiff was free from fault contributing thereto; and in support of the conclusion of the jury it has been often decided by this court that a general verdict will not be defeated by isolated facts disclosed by answers to interrogatories, unless such facts are shown to be so repugnant and contradictory to the general verdict that both cannot be true under any conceivable state of facts provable under the issues. Southern Ind. R. R. Co. v. Peyton, 157 Ind. 690, 697, 61 N. E. 722, and cases cited. In determining the force of such specific facts we can look only to the pleadings, the general verdict, and answers to interrogatories. Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235. It is averred in the complaint that the plaintiff is old, infirm, and possessed of but one leg; that in alighting from the street car it was necessary for him to use both hands in supporting himself; and that while reaching and attempting to remove from the car a grip bag which he had, and before he had time to remove it, the defendant suddenly and negligently started the car, thereby causing the plaintiff to be thrown down and dragged by the car, whereby he was injured, etc. The answers to interrogatories show that appellee was a passenger upon appellant's street car, and carried a satchel. The car was stopped to permit appellee to alight. The conductor did not assist him, and, while appellee was reaching for his grip bag, the car was suddenly started, and threw appellee down. Appellee, in falling, caught hold of the running board of the car, and, holding on thereto, was dragged a distance of 10 feet, and injured by being so dragged. The twenty-fourth interrogatory and answer were as follows: “Could the plaintiff have released his hold on the car, and have avoided being dragged? Ans. No evidence.” It is argued that appellee's holding on to the running board of a moving car, after he had fallen, until it had dragged him 10 feet, is prima facie contributory negligence, and therefore incumbent upon appellee to affirmatively show that he could not let go the car, and avoid being dragged; and, as there was no evidence upon the point, the court must presume that he could have released his hold by the exercise of ordinary caution, and have avoided the injury. Appellant's argument must fail for two reasons: (1) Because this court can indulge no presumption against the general verdict; and (2) because of the well-established rule “that one who does an act under an impulse or upon a belief created by a sudden danger attributable to another's negligence, is not to be regarded as guilty of contributory fault, even though the act would be regarded as negligent if performed under circumstances not indicating such peril.” Clarke v. Pennsylvania Company, 132 Ind. 199, 31 N. E. 808, 17 L. R. A. 811;Pennsylvania Co. v. McCaffrey, 139 Ind. 430, 38 N. E. 67, 29 L. R. A. 104;Lake Erie, etc., Co. v. McHenry, 10 Ind. App. 525, 37 N. E. 186. Here the plaintiff was old, infirm, and with but one leg, and as he stood by the side of the car, necessarily leaning upon his crutch, or holding to the car, while he reached for his grip bag, by the untimely and negligent starting of the car he was thrown to the ground, and near to the revolving wheels of the car. Having been thus suddenly and unexpectedly cast into a situation that might reasonably appear to him to be one of eminent danger of losing his life or of suffering great bodily harm, the seizing of the running board, which would at least stay him from passing under the wheels, cannot be accounted contributory negligence per se, even though it was clear to one not imperiled that the safer course would have been not to have seized the running board. The jury, whose duty it was to characterize the act, determined by their general verdict that appellee was free from contributory fault; and that must be the end of it so far as it is affected by the interrogatory and answer in question.

2. Before the trial appellant seasonably moved the court for a continuance of the cause to enable it to procure the testimony of an absent witness, who was the motorman of the car by which appellee was injured. To avoid a postponement of the trial, appellee indorsed upon the affidavit filed in support of the motion for a continuance an admission that the absent witness, if present, would testify to the material facts stated in the affidavit. Subsequently appellee moved the court that certain sets of words contained in the affidavit for continuance be not read to the jury as admitted testimony of the absent witness, for the reason that such words stated incompetent conclusions only. The several sets of objectionable words follow: (a) “Through no fault of the defendant or its officers, or agents, or employés, but through...