Jameson v. McCaffry

• Citation: 300 N.E.2d 889,157 Ind.App. 480
• Decision Date: 10 September 1973
• Docket Number: No. 1--1272A116,1--1272A116
• Court: Indiana Appellate Court
• Parties: Beverly A. JAMESON, Plaintiff-Appellant, v. Arthur B. McCAFFRY and Louisiville and Nashville Railroad Company, Defendants-Appellees.

Page 889

300 N.E.2d 889

157 Ind.App. 480

Beverly A. JAMESON, Plaintiff-Appellant, v. Arthur B. McCAFFRY and Louisiville and Nashville Railroad

Company, Defendants-Appellees.

No. 1--1272A116.

Court of Appeals of Indiana, First District.

Sept. 10, 1973.

Rehearing Denied Oct. 3, 1973.

James M. Redwine, Redwine and Kiely, Arthur Griffith, Evansville, for plaintiff-appellant.

F. Wesley Bowers, James R. Thornton, Fitzgerald, Bowers, Harrison, Kent & Thornton, Evansville, for defendants-appellees.

LOWDERMILK, Judge.

The complaint in this cause was filed December 30, 1970, and answer filed thereto on January 25, 1971. On July 12, 1971, plaintiff-appellant filed request for jury trial which was not ruled on and the cause was later assigned for trial by jury on October 21, 1971. Defendants orally objected to plaintiff's request for jury trial, and later filed written objections to said request, which written objections were sustained by the court on October 5, 1971.

Plaintiff-appellant filed a second request for jury trial on December 14, 1971, which was denied by the court and the cause was assigned for trial before the court on March 1, 1972.

The cause was tried to the court without a jury and the court found for the defendants and against the plaintiff and entered judgment accordingly.

Plaintiff-appellant timely filed her motion to correct errors which was by the court overruled.

Plaintiff-appellant testified that she was alone and was driving at a speed of 35 miles per hour and slowed as she approached the five crossings of the Louisville and Nashville (L & N). There are no crossing gates at the intersection and no regular watchman on duty. The flasher lights were not flashing immediately before the accident. She further testified she looked both ways before crossing the tracks, saw no engine, heard no bell, and did not see any flare or a man waiving a lantern. Her vision and her hearing were good; the night was cold and clear. She was halfway through the five tracks when the left rear end of the Volkswagen bus was struck by a locomotive.

She testified she sustained personal injuries and was taken to Deaconess Hospital in a state of shock. She further testified she had had one beer about three and a half hours before the collision. There were empty beer bottles in the back of her vehicle.

Many witnesses testified concerning the crossing and the conduct of the train and its crew. The evidence is undisputed that there were red flasher lights on either side of the track to warn pedestrians and vehicles approaching the five tracks. The street on which Jameson was driving was at the end of railroad yards where these five sets of tracks crossed the street. The red warning lights were operated manually and in most instances by a trainman who would leave the engine as it approached the crossing and push the switch to operate the lights and, when the hazard had passed, would push another switch to turn them off.

The evidence most favorable to appellees was that Billy Keith Spray was a brakeman for the L & N on the engine involved in the collision and that the engine was stopped back in the yards some feet from the highway. He went out on the highway and signaled the engineer, McCaffry, to move ahead. He saw the Volkswagen bus coming and waved his lighted electric lantern toward it to indicate the hazard. Plaintiff-appellant approached that part of the street in which he was standing and later sewer to her left to avoid striking him and then cut back to the right and headed straight for the engine, which he claimed was stopped and setting on the crossing. He further testified that Jameson slammed on her brakes and went across and tracks and the rear end of the bus slid into the engine. Spray further testified that the locomotive headlights were burning, the bell was ringing and the flashers were flashing. However, other witnesses deny that the bell was ringing or the flashers were flashing and apparently did not see Spray flagging with his lantern. Police officers arrived, made an investigation, and sent Jameson to the hospital.

Police officers testified they smelled alcohol on Jameson's breath and the receiving nurse at the hospital could not remember; however, that portion of the hospital record which she prepared disclosed that she smelled alcohol on Jameson's breath.

The first assignment of error relied upon by plaintiff-appellant for a new trial is the irregularity in the proceedings by the court denying plaintiff a jury trial.

The plaintiff-appellant admits that she impliedly waived her constitutional right to a trial by jury by failing to make a request for it within a ten day time limit. She contends when the court, pursuant to plaintiff's request, set the cause for jury trial it nullified the waiver and that when the trial judge subsequently denied the plaintiff a jury trial he abused his discretion and committed reversible error.

Plaintiff-appellant attempts to sustain her position with the case of McDonald v. Miller (1968), 143 Ind.App. 606, 242 N.E.2d 39. In McDonald the former Supreme Court Rule 1--8A controlled, but has now been superceded by Rule TR. 38(B), IC 1971, 34--5--1--1. It appears to us from the McDonald case that at that time it was discretionary with the court to grant a motion for trial by jury, even though the ten day limitation had passed, but the discretion granted by that section did not extend to the withdrawal of the right to a jury once granted because of the limitation of Rule 1--8A. Said Rule 1--8A does not take away the right to a jury trial. Said rule only provides the method of waiving such right. Spangler v. United States Rubber Co. (1962), 133 Ind.App. 468, 470, 471, 183 N.E.2d 212. That case further discusses Ind.Stat.Ann. Burns § 2--1204, Cases triable by court and by jury. Spangler v. Armstrong Rubber Co. (1962), 133 Ind.App. 411, 413, 178 N.E.2d 764.

It must be remembered that said cited section of the statute has been repealed and the Rules of the Supreme Court adopted and effective January 1, 1970, are now controlling in the case at bar.

We are of the opinion that Jameson was not denied a jury trial but that she waived her right to a jury by not making a timely demand in accordance with Rule TR. 38(B). Plaintiff-appellant cannot now successfully maintain that the court erred in its ruling merely because there was no delay occasioned by the filing of the motion for a jury trial. She did not comply with the rule and cannot now be heard to complain.

We are of the opinion, therefore, that the court did not commit error in denying a jury trial at the time he did. Harvey's Indiana Practice, Vol. 3, p. 146, Rule 38(b); Aetna Casualty and Surety v. Acme-Goodrich (1959), 130 Ind.App. 432, 438, 159 N.E.2d 310.

Specification 2 of the motion to correct errors is waived by plaintiff-appellant for the reason that it is not argued or discussed in the argument section of the brief, as required by Rule AP. 8.3(A)(7).

Plaintiff-appellant states that issues 3 through 7 which make up assigned errors raise substantially the same questions and proceeds to group them and support them under the same argument, pursuant to Rule AP. 8.3(A)(7). We shall treat them accordingly.

Specification 3 is a clever way to camouflage the charged error that the court's decision is based on insufficient evidence. We necessarily hold that the specification of error amounts to an attempt to appeal from a negative judgment, assigning as error insufficient evidence. Such is not permissible.

Specification 4 is that the decision of the court is contrary to the evidence in that the court failed to grant plaintiff a judgment on the theory of last clear chance. This, too, is an appeal from a negative judgment and therefore said specification of error presents nothing to this court. Englebrecht v. Property Developers, Inc. (1973), Ind.App., 296 N.E.2d 798; Ver Hulst v. Hoffman (1972), Ind.App., 286 N.E.2d 214, 216.

Specification 5 is that the decision of the court is contrary to law in that the evidence allows no interpretation other than recovery by plaintiff on the theory of last clear chance.

The trial judge saw, heard and observed the witnesses; he was in a position to determine the facts, which he did, and it was a question of fact and not of law to be determined who was at fault and which of the parties had the last clear chance. This court, as heretofore stated so many times, will not weigh the evidence but will consider only the evidence most favorable to the appellee to determine if there is substantial evidence of probative value or reasonable inferences therefrom to sustain the decision of the trial court. Having so considered the evidence we are of the opinion there was ample evidence to sustain the trial court's decision. Chicago, Indianapolis & Louisville R. Co. v. Carter (1971), Ind.App., 274 N.E.2d 537; Pontious v. Littleton (1970), 146 Ind.App. 369, 255 N.E.2d 684, 20 Ind.Dec. 422.

The case of Pokraka v. Lummus Co. (1951), 230 Ind. 523, 532, 104 N.E.2d 669, 673, holds:

'It is only where the evidence is without conflict and can lead but to one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the grounds that it is contrary to law.'

In the case at bar the evidence was most conflicting and it would be a physical impossibility for reasonable men to reach only one conclusion under the evidence. Therefore the decision is not contrary to law and there is no error as claimed, as the evidence does permit an interpretation other than the recovery by the plaintiff on the theory of last clear chance.

Plaintiff-appellant's next contention is that the court committed reversible error in sustaining defendant's objections to questions propounded to witnesses Raymond E. Jameson, Carrol Wagner, and Harold Nelligan concerning prior malfunctioning of safety devices at the intersection. Plaintiff-appellant saved her...