Indianapolis & Cincinnati Traction Co. v. Sherry

• Decision Date: 19 June 1917
• Docket Number: No. 9314.,9314.
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS & CINCINNATI TRACTION CO. v. SHERRY.

65 Ind.App. 1

116 N.E. 594

INDIANAPOLIS & CINCINNATI TRACTION CO.

v.SHERRY.

No. 9314.

Appellate Court of Indiana, Division No. 1.

June 19, 1917.

Appeal from Circuit Court, Union County; Geo. L. Gray, Judge.

Action by Luther Sherry against the Indianapolis & Cincinnati Traction Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial directed.William A. Kittinger, William S. Diven, and Albert Diven, all of Anderson, for appellant. David W. McKee, Raymond S. Springer, Richard N. Elliott, and Allen Wiles, all of Connersville, for appellee.

BATMAN, J.

Appellee filed his complaint in the court below to recover damages on account of injuries to himself and to his automobile, alleged to have been caused by the negligent operation of one of appellant's interurban cars at a street crossing in the city of Connersville, Ind. Appellant answered by general denial. Trial was had by jury, and judgment was rendered in favor of appellee for $1,000. From this judgment appellant prosecutes this appeal, and relies for reversal on the action of the trial court in overruling its motion for judgment in its favor on the interrogatories and answers returned by the jury with its general verdict for appellee and in overruling its motion for a new trial. In the latter motion appellant bases error, among other things, on the action of the court in giving certain instructions on its own motion, in refusing to give certain instructions tendered by it, and in admitting certain evidence over its objections.

[1] Among the instructions given by the court on its own motion is No. 6, which reads as follows:

“Under the issue formed by the pleadings filed, the plaintiff must prove the alleged negligence of the defendant railway company by a fair preponderance of the evidence, and the defendant as a matter of affirmative defense must prove negligence on the part of the plaintiff at the time of the accident alleged by a fair preponderance of the evidence.”

Appellant contends that this instruction is erroneous. It bases this contention on the fact that appellee, by its complaint in this action, seeks to recover damages, not only for injuries to himself, but also for injuries to his automobile, and hence this instruction placed on it a greater burden than it was required to assume under the law. In this appellant is correct. The statute provides that in actions for damages, brought on account of alleged negligence causing personal injuries, contributory negligence shall be a matter of defense, which may be proved under an answer of general denial. Burns' R. S. 1914, § 362. But in actions for damages to personal property on account of alleged negligence the burden is on the plaintiff, not only to aver and prove that the injury to his property was caused by the alleged acts of negligence of the defendant, but also that no negligence of his own contributed proximately thereto. Potter v. Ft. Wayne, etc., Co. (1908) 43 Ind. App. 427, 87 N. E. 694;Cleveland, etc., R. Co. v. Moore (1909) 45 Ind. App. 58, 90 N. E. 93;Ackerman v. Pere Marquette, etc., Co. (1914) 58 Ind. App. 212, 108 N. E. 144;Ft. Wayne, etc., Co. v. Monroeville, etc., Co. (1912) 179 Ind. 334, 100 N. E. 69;Evansville, etc., Co. v. Williams (1915) 183 Ind. 633, 109 N. E. 963;Pittsburgh, etc., Co. v. Dove (1915) 184 Ind. 447, 111 N. E. 609. By giving instruction No. 6 the court placed the burden of proof as to the entire issue of contributory negligence on appellant. The courts have repeatedly head that placing the burden of proof of an issue on the wrong party to an action is reversible error. Hunt, Adm'r, v. Osborn (1907) 40 Ind. App. 646, 82 N. E. 933;Gas Belt, etc., Co. v. Ward (1908) 43 Ind. App. 537, 87 N. E. 1110;Stouffer v. Stoy (1910) 46 Ind. App. 180, 91 N. E. 250; Ft. Wayne, etc., Co. v. Monroeville, etc., Co., supra; Evansville, etc., Co. v. Williams, supra. This instruction was not withdrawn, and none other was given on the same subject. Its giving therefore constituted reversible error.

[2] Appellant further contends that the court erred in giving instruction No. 19 on its own motion. This instruction reads as follows:

“If you find from the evidence in this cause that the plaintiff sustained injuries as alleged in the complaint, and that such injuries were sustained by the plaintiff by reason of the negligence of the defendant company, and without negligence on the part of the plaintiff, your verdict should be for the plaintiff in this action.”

Appellant's contention is that this instruction failed to limit the right of recovery to the acts of negligence alleged in the complaint, but opened wide the door, and informed the jury that it might return a verdict for appellee if it found the injuries alleged in the complaint were the result of the negligence of appellant, whether alleged in the complaint or not. It is well settled that a plaintiff is only entitled to recover, in an action for damages predicated on negligence, by proof of one or more of the specific acts of negligence alleged in his complaint, and that a failure to make such proof will defeat his right of action, no matter what other acts of negligence are disclosed by the evidence. Indianapolis, etc., Co. v. Derry (1904) 33 Ind. App. 499, 71 N. E. 912;Chicago, etc., Co. v. Thrasher (1904) 35 Ind. App. 58, 73 N. E. 829;Plummer v. Indianapolis, etc., Co. (1914) 56 Ind. App. 615, 104 N. E. 601;Indiana R. Co. v. Maurer (1902) 160 Ind. 25, 66 N. E. 156;Terre Haute, etc., Co. v. Roberts (1910) 174 Ind. 351, 91 N. E. 941;Indianapolis, etc., Co. v. Matthews (1911) 177 Ind. 88, 97 N. E. 320;Sandy River, etc., Co. v. Caudill (Ky.) 60 S. W. 180;Savannah, etc., Co. v. Tiedeman & Brother, 39 Fla. 196, 22 South. 658;Louisville, etc., Co. v. Wade, 46 Fla. 197, 35 South. 963;Northern Milling Co. v. Mackey, 99 Ill. App. 57;Chicago, etc., Co. v. Mock, Adm'x, 72 Ill. 141. The giving of this instruction violates this rule, as its reasonable interpretation would lead the jury to believe that it was its duty to return a verdict for appellee, on a finding that his injuries were caused by any negligence of appellant, regardless of the allegations of the complaint. Its giving was therefore error. Appellee seeks to avoid the meaning we have given this instruction by a contention that the modifying words “as alleged in the complaint” refer not only to the nature and extent of the injuries, but also to the manner of their infliction. We do not consider this contention well taken. The position of the modifying words are against such a construction. It will be observed that immediately after their use the court undertakes to tell the jury to what negligence appellee's injuries must be traceable in order to entitle him to recover in this action, and in so doing fails to limit the same to the negligence alleged in the complaint. Appellee's contention, at most, can only serve to demonstrate the confusing character of the instruction, and thus leave its giving error. Summerlot v. Hamilton (1889) 121 Ind. 87, 22 N. E. 973;Wenning v. Teeple (1895) 144 Ind. 189, 41 N. E. 600;Pittsburgh, etc., Co. v. Noftsger (1897) 148 Ind. 101, 47 N. E. 332;Masons, etc., Ass'n v. Brockman (1897) 20 Ind. App. 206, 50 N. E. 493;Southern, etc., Co. v. Moore (1901) 29 Ind. App. 52, 63 N. E. 863.

[3] Appellant made seasonable tender of a number of instructions with a request that the court give the same, but all were refused. It bases error on such refusal in its motion for a new trial. Among those tendered were Nos. 15 and 35. The former was a correct instruction, as to the burden of proof on the question of contributory negligence, on the issue of damages to the automobile. The latter was a correct instruction as to the acts of negligence which the jury might consider in arriving at its verdict, expressly limiting the same to those alleged in the complaint. The rule is well...