Louisville v. Stommel

• Decision Date: 14 November 1890
• Citation: 25 N.E. 863,126 Ind. 35
• Court: Indiana Supreme Court
• Parties: Louisville, N. A. & C. Ry. Co. v. Stommel.

126 Ind. 35

25 N.E. 863

Louisville, N. A. & C. Ry. Co.

v.Stommel.

Supreme Court of Indiana.

Nov. 14, 1890.

Appeal from circuit court, Lake county; E. C. Field, Judge.George W. Friedly, George R. Eldridge, Sullivan & Jones, and W. C. McMahon, for appellant. J. W. Youche, for appellee.

Berkshire, C. J.

This was an action instituted by the appellee against the appellant to recover damages for two horses killed and a wagon destroyed because of the alleged negligence of the employes of the appellant in running and operating a locomotive and train of cars, of which it was the owner, over and along its line of railroad. The appellee has filed no brief, and therefore we are without the benefit of an argument in support of the various rulings of the trial court complained of. The case was put at issue by an answer in general denial after a demurrer had been addressed to the complaint and overruled. The issue joined was submitted to a jury, who, after hearing the evidence, returned a verdict for the appellee, and returned therewith certain interrogatories propounded to them, with their answers thereto. The appellant moved for a judgment in its favor non obstante, because of the answers to the interrogatories. The court overruled this motion, and the appellant then filed a motion for a new trial, which was also overruled, and judgment rendered for the appellee. To all of these adverse rulings of the court, the appellant reserved exceptions. Several errors have been assigned, to which we need not make special reference, for the reason that the questions considered will sufficiently appear in the opinion without such reference. We regard the second paragraph of the complaint (it being the one upon which the verdict depends) as good. It alleges facts sufficient to show negligence on the part of the appellant, and contains the usual negative averment that there was no contributory negligence on the part of the appellee. This renders the complaint good unless it affirmatively appears, notwithstanding these allegations, that there was an absence of negligence on the appellant's part, or the presence of negligence on the part of the appellee; and neither is made to appear.

The answers of the jury to the interrogatories are not so inconsistent with the general verdict as to overrule it; hence there was no error in overruling the motion non obstante. This brings us to the motion for a new trial. Certain questions are raised by the motion for a new trial, because of the rejection of certain testimony offered by the appellant. As the judgment will have to be reversed for other reasons, and as these questions may not arise on another trial, we do not stop to consider them.

The appellant requested certain instructions, which were refused by the court. The instructions are 14 in number, and it was the duty of the court to have given all of them, or their equivalent, from 1 to 12 inclusive, except the tenth and twelfth. We have not considered the thirteenth and fourteenth, for the reason that counsel for appellant have waived their consideration by failing to call attention thereto in their brief. The tenth did not state the law correctly in this particular: “That the defendant's train which, it is charged, did the injury was at the time running 20, 30, or 40 miles an hour, constitutes no element of negligence; or, under the other facts proven, shows the defendant or its servants to have been willfully careless of the consequences of such running.” The language of the instruction is confused, and was calculated to mislead the jury; besides, it was not the question in the case as to whether the appellant's servants were guilty of willful conduct. Whether the rate of speed at which the train was running constituted an element of negligence was a question of fact for the jury, under all the circumstances of the case, and not a question of law for the court. In the twelfth instruction the court was asked to instruct the jury that, under certain circumstances, the positive testimony given by one witness is entitled to more weight than negative testimony given by another. The credibility of witnesses, and the weight to be given to their testimony, are always questions for the jury. The instructions of the court substantially covered the instructions asked by the appellant, numbered 4, 6, and 11, and we need not, therefore, spend any time with those instructions.

By the first instruction the court was requested to say to the jury that when a person is injured while crossing a railroad track, either in person or property, by a collision with a train, the fault is prima facie his own, and he must affirmatively...