Indianapolis & Cincinnati Traction Co. v. Harrell

Decision Date30 March 1922
Docket NumberNo. 24124.,24124.
Citation134 N.E. 871,192 Ind. 188
CourtIndiana Supreme Court
PartiesINDIANAPOLIS & CINCINNATI TRACTION CO. v. HARRELL et al.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge.

Action by William H. Harrell and another against the Indianapolis & Cincinnati Traction Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Superseding opinion of Appellate Court 131 N. E. 17.

Ed. K. Adams, of Shelbyville, Joseph R. Morgan, of Indianapolis, and Donald L. Smith, of Rushville, for appellant.

Hall, Williams & Pell and Elmer Bassett, all of Shelbyville, for appellees.

TOWNSEND, J.

Appellees' automobile was being driven south on the main business street in the village of Fairland. It was struck by appellant's interurban car, which came from the northwest. Appellant is charged with negligent speed over the street crossing and failure to sound whistle for the crossing. Verdict and judgment for $800 damages to appellees' automobile.

Questions presented:

(1) Verdict not sustained by sufficient evidence.

(2) Error in giving and refusing instructions.

(3) Excessive damages.

A number of witnesses testified to facts and circumstances which tend strongly to show that the driver of this automobile was guilty of contributory negligence. As he approached this crossing from the north, his view of the interurban track was cut off by buildings and objects on the west side of the street, and on the northwest corner of the crossing. He said that he looked and listened for cars after he passed these obstructions, but that he neither saw nor heard the car until the instant it collided with the automobile.

[1][2] The jury and the trial court are better able to judge the value of testimony. They of necessity have a better opportunity to weigh the evidence of each witness. They not only know the circumstances of each witness' point of view, but they also can judge his character, interest, lack of interest, fairness, frankness, etc. It may seem to this court that a different inference should have been drawn from testimony as we find it in a record; but if we should undertake to set our judgment on this subject against that that of the jury and the trial court there would be no end to the mistakes that we should make. Why have a jury and a trial court, if we are going to pass on the evidence in cold type? A witness testifies to certain facts and circumstances. Five other witnesses testify to facts and circumstances which indicate that the one witness is mistaken, or is coloring his testimony because of interest. Twelve ordinary men say that this one witness, under the circumstances, is telling the truth that establishes his case. When the trial judge passes upon the motion for a new trial, it is his duty to sustain the motion, if the jury could not reasonably have drawn the inference which it did. The trial judge saw the witnesses and heard them testify. It is his duty to hear the case along with the jury. He too has an opportunity to see and know the jury. If, in passing on a motion for a new trial, he takes all of these things into consideration and acts accordingly, he will have performed his duty. We must assume that he has done so. A trial court is not a mere umpire to confine the evidence to the issue and instruct the jury on the law of the case. It is his duty to keep his eyes and ears open to what is going on during the trial, so that when he is confronted with a motion for a new trial he may be able to pass upon the question of the sufficiency of the evidence, as well as the pure legal questions. The sufficiency of the evidence to the trial court is a mixed question of law and fact. When he passes upon this question, if he can say that the jury should not have found as they did, that they could not reasonably have found as they did, he should sustain the motion for a new trial. He may know that the particular jury is grossly ignorant and stupid, or that it is bright and capable. He may know that it is inclined to take somebody's money just because an accident has occurred and there has been an injury to person or property. He is there to protect the litigant against just such contingencies. This same jury is, to us, 12...

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3 cases
  • Wildwood Manor, Inc. v. Gary Nat. Bank
    • United States
    • Court of Appeals of Indiana
    • 9 Febrero 1970
    ...second guess a trial court in granting a motion for new trial. State ex rel. Conner v. Pritchard, supra; Indianapolis, etc., Traction Co. v. Harrell (1922), 192 Ind. 188, 134 N.E. 871; Lewis v. State (1894), 137 Ind. 344, 36 N.E. 1110; Novak v. Chicago & Calumet Dist. Transit Co., supra; Po......
  • White v. Bardach
    • United States
    • Court of Appeals of Indiana
    • 26 Noviembre 1968
    ...a trial court in granting a motion for new trial. State ex rule. Conner v. Pritchard, Judge, supra; Indianapolis & Cincinnati Traction Co. v. Harrell (1922), 192 Ind. 188, 134 N.E. 871; Lewis v. State (1894), 137 Ind. 344, 36 N.E. 1110; Novak, Admx., etc. v. Cicago & C. Dist. Tr. Co. et al.......
  • Indianapolis and Cincinnati Traction Company v. Harrell
    • United States
    • Supreme Court of Indiana
    • 30 Marzo 1922

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