Indianapolis, Peru and Chicago Railway Co. v. Bush

• Decision Date: 29 April 1885
• Docket Number: 10,852
• Citation: 101 Ind. 582
• Parties: The Indianapolis, Peru and Chicago Railway Company v. Bush
• Court: Indiana Supreme Court

101 Ind. 582

The Indianapolis, Peru and Chicago Railway Company v. Bush

No. 10,852

Supreme Court of Indiana

April 29, 1885

From the Marion Superior Court.

The judgment is affirmed, with costs.

T. A Hendricks, C. Baker, O. B. Hord and A. W. Hendricks, for appellant.

L Ritter, E. F. Ritter and B. W. Ritter, for appellee.

OPINION

Zollars C. J.

Appellee was injured by one of appellant's engines at a point where the railroad track crosses Liberty street, in the city of Indianapolis, and brought this action for the recovery of damages resulting from that injury. The action is based upon a charge of negligence.

The grounds of negligence specifically charged are, that, in violation of a city ordinance, appellant failed to have a watchman at the crossing to give him warning of the approaching engine; that in approaching the crossing he looked and listened for a warning from a flagman, and that no warning of any kind was given; that in violation of another ordinance, forbidding the moving of trains through the city at a greater rate of speed than four miles an hour, the engine was brought to and over the crossing, at the speed of eight miles an hour; that those in charge of the train negligently failed to sound the whistle or ring the bell, or to give any other warning whatever of the approaching engine.

There is a general charge that the injury occurred by reason of the wrongful, reckless, negligent and unlawful acts of the defendant "aforesaid," and without fault of appellee in driving upon the crossing, or otherwise.

The jury returned a special verdict. At the proper time appellant, by counsel, moved for a venire de novo upon twelve different grounds stated. These grounds may be classified and epitomized as follows:

1st. The special verdict, in part, is a statement of evidence, instead of the facts.

2d. The verdict consists, in part, of conclusions of law.

3d. Facts are found which are not averred in the complaint.

4th. There is a failure to find important facts which were proven upon the trial.

It is well settled that it is the office of a special verdict to find the facts, and not the evidence or conclusions of law. Locke v. Merchants Nat'l Bank, 66 Ind. 353; Dixon v. Duke, 85 Ind. 434; Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186. And so, too, the verdict should be limited to the case as made by the pleadings, and should find all the facts proven under the issues; but it does not follow that if a special verdict should contain evidence, conclusions of law, fail to find facts proven, and find facts without the issue, a motion for a venire de novo must be sustained.

If a special verdict includes findings of evidence, conclusions of law, and matters without the issues, such findings will be disregarded in the determination and rendition of judgment.

If, stripped of these matters, the verdict is yet sufficient to lead to and support a judgment either way under the issues as made by the pleadings, a motion for a venire de novo will be overruled. Such a motion will not be sustained except where there is some defect, uncertainty or ambiguity upon the face of the verdict, rendering it so defective that judgment can not be rendered upon it. Heckelman v. Rupp, 85 Ind. 286; Henderson v. Dickey, 76 Ind. 264; Brickley v. Weghorn, 71 Ind. 497; Knox v. Trafalet, 94 Ind. 346.

If the verdict fails to find any fact established by the evidence, finds facts without the issue, or not established by the evidence, the remedy is by motion for a new trial, assigning proper causes.

Upon the question of appellant's negligence, and the negligence of appellee, the special verdict is as follows:

The track of the Union Railway Company crossed Liberty street parallel with and near the track of appellant. For about two years prior to the accident and at that time those two companies, by an arrangement between them, had kept a flagman at the crossing, whose duty it was to keep himself in a proper position to warn approaching travellers upon the street of the approach of trains, and also to discharge the duties of switchman. The obstruction to a view of the track by approaching travellers was such as to make the crossing one of unusual danger. As the engine neared the street, the fireman, whose duty it was to ring the bell and keep a lookout for approaching travellers, left the engine on the side opposite from which appellee was approaching, and did not ring the bell. The engineer, whose duty it was also to keep a lookout as he approached the crossing, neglected that duty and was looking to the rear of the train. Before and at the time appellee approached the crossing, the flagman was away from his post of flagman, adjusting switches, and gave no warning at all to appellee of the approach of the train. No notice or warning of any kind was given to appellee of the approaching train, that he heard or saw, by appellant or any other person. Appellee was in an open buggy driving a horse in an ordinary trot as he approached the crossing. As he neared it, he looked and listened continuously from a point one hundred and seventy-five feet from the railroad track for a warning from a watchman, the ringing of a bell, and other signals of an approaching train. Until the horse was within five feet of the track, the view of the train was entirely obstructed by buildings. He neither saw nor heard any signals of the approaching train until his horse was within five feet of the track, at which time the engine was within five feet of the horse. He then tried to stop the horse, but he, becoming frightened, sprang forward, and appellee, in attempting to jump from the buggy, fell and was run over by the engine.

His leg was so crushed that it had to be amputated between the hip and knee. At the time of the injury appellee was twenty-seven years old, and in vigorous health. At the close of the verdict are conclusions by the jury that appellee was not guilty of contributory negligence, and that the injury was the result of carelessness and negligence on the part of appellant. These conclusions are conclusions of law that the jury could not make, and hence must be disregarded in deciding as to the sufficiency of the verdict. Pittsburgh, etc., R. R. Co. v. Spencer, supra.

Whether or not sufficient facts are found in the verdict to support the judgment is another question, and a question which is not raised by the motion for a venire de novo. That motion was properly overruled.

Appellant asked a number of instructions which the court refused. The refusal was assigned as a cause for a new trial below, and is urged here as error.

In the first the...