Masterson v. Southern Ry. Co.

• Decision Date: 20 December 1907
• Docket Number: No. 6,019.,6,019.
• Citation: 82 N.E. 1021
• Parties: MASTERSON v. SOUTHERN RY. CO. et al.
• Court: Indiana Appellate Court

82 N.E. 1021

MASTERSON

v.SOUTHERN RY. CO. et al.

No. 6,019.¹

Appellate Court of Indiana, Division No. 2.

Dec. 20, 1907.

Appeal from Circuit Court, Dubois County; E. A. Ely, Judge.

Action by Ruth Masterson, administratrix, against the Southern Railway Company and others. From an order refusing plaintiff's motion for judgment notwithstanding the verdict, she appeals. Reversed.

See 81 N. E. 730.

Cox & Armstrong, for appellant. A. P. Humphrey, Jno. D. Welman, and M. W. Fields, for appellees.

ROBY, C. J.

Appellant, administratrix, brought this action to recover damages on account of the death of her husband, alleged to have been caused by the negligence of the appellee. The jury returned a verdict in her favor for $3,500, together with answers to interrogatories. The court sustained appellee's motion for judgment notwithstanding the general verdict. Appellant failed to reserve an exception to such action.

The first question for decision is whether, upon the record, the propriety of such action can be considered. The verdict was returned November 3, 1904. The defendants on same date filed written motions for judgment upon the answers to interrogatories. These motionswere taken under advisement “until the next term.” On the 18th day of January, 1905 (the fifteenth of the term), motions for a new trial, filed by the defendants at the prior term, were withdrawn. On January 26th, the court sustained appellee's motions and entered judgment for them. The entry is, in part, as follows: “And that the defendants recover of the plaintiffs their costs and charges herein laid out and expended, and the plaintiff now moves the court for judgment on the general verdict herein, which motion is overruled, to which ruling the plaintiff at the time excepts, which said motion made by plaintiff for judgment on the general verdict herein is in words and figures as follows, to wit: ‘*** The plaintiff in the above-entitled cause moves the court to render judgment herein on the general verdict rendered in this cause, ***’-which said motion was indorsed on the back, as follows, to wit: ‘Filed January 23, 1905. John P. Huther, Clerk Circuit Court. ***”’ It is the duty of the court to render judgment in conformity with the verdict (section 573, Burns' Ann. St. 1901), and it is also the duty of the court to render proper judgment where there has been a special finding on particular questions of fact (section 574, Burns' Ann. St. 1901). It was proper practice for each party to move for judgment, and an exception by one party to the overruling of his motion or to the sustaining of his adversary's motion equally presents the question on appeal. Austin et al. v. Earhart, Ex., 88 Ind. 182;Branson v. Studabaker, 133 Ind. 147, 161, 33 N. E. 98. Motion for judgment upon the general verdict, made after judgment rendered upon answers to interrogatories, comes too late to present any question. It is also true that a party who makes a seasonable motion for judgment cannot be deprived of his exception by delay in making a record of such fact. The method pursued by the clerk in making up this transcript is uniform throughout. The ruling is first set out, following this the motion, whatever it is, and following the body of the motion, the indorsement and file mark of the clerk, showing the date when the motion was presented. If the sequence in which the proceeding was had is to be taken as conforming to the order of entry, the result would be that the court would be convicted of the absurdity of ruling upon each motion before it was filed. This, of course, would be an impossible deduction, and the various acts shown by the transcript should therefore be presumed to have occurred in ordinary and regular order. Helms v. Wagner, 102 Ind. 385, 386, 1 N. E. 730. This presumption, in connection with the peculiar make-up of the transcript, leads to the conclusion that the appellant did not wait until judgment had been rendered against her before moving for judgment herself. It is not necessary to rely upon any presumption, however, for the reason that it affirmatively appears that the motion was filed three days before any judgment was rendered. The duty of a clerk is to file each paper in a cause (section 6519, Burns' Ann. St. 1901). The filing of a paper is the “delivery of it to the officer at his office to be kept by him as a paper on file.” Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494;Johnson et al. v. C. F. K. & Ft. W. R. Co., 11 Ind. 280, 284; Bouvier's Law Dict. tit. “File.” The file mark of the officer is evidence of filing, but it is not the essential element of the act. State ex rel. v. Foulkes, 94 Ind. 493, 496;Hull v. Louth, etc., 109 Ind. 315, 10 N. E. 270, 58 Am. Rep. 405. The record entry above quoted does not conflict with the evidence furnished by the file mark as to the time when appellant's motion was actually filed. State v. Matthews, 129 Ind. 281, 28 N. E. 703; Peterson v. Taylor, 15 Ga. 483, 60 Am. Dec. 705; Board Com'rs v. O'Connor, 137 Ind. 622, 35 N. E. 1006, 37 N. E. 16; L., N. A. & Chi. R. Co. v. Terrell, 12 Ind. App. 328, 39 N. E. 295;Gish v. Gish, 7 Ind. App. 104, 34 N. E. 305; 8 Encyc. Plead. & Practice, p. 927. And the failure to make a record entry of the time of filing was a mere omission, which the court might have corrected (Security Co. v. Arbuckle, et al., 123 Ind. 518, 521, 24 N. E. 329), and which will be deemed corrected (section 670, Burns' Ann. St. 1901). It is therefore held that the appellant's exception to the overruling of her motion presents for review the correctness of the ruling thereon.

The final disposition of the cause depends upon whether the facts found in the answer to interrogatories are sufficient to overcome the general verdict, with its attendant presumptions. The facts so found are to the effect that decedent was killed July 18, 1903, on the Hartwell switch of the Southern Railway Company, consisting of a single track five miles long. He was in the employment of said railway company, and in its service, at the time of his death, since February 19, 1903, and had been a brakeman on a coal train between Princeton and Huntingburg for about five days before his death, and passed over said switch once each day during such five days. Said switch was upgrade from the main track. A locomotive going from the main track south would have to push all cars upon the switch ahead of it. On the day decedent was killed, appellee's locomotive left the main track pushing in front of it four cars. Masterson was on the south end of said cars. He coupled said south car to another car or cars standing on said switch some distance south of the main track. He then rode south on the south car some distance to the next car standing further south. He made three or four couplings before he was killed. When riding on said cars and making said couplings, he was in the line of his duty as a brakeman. The cars were equipped with automatic couplers, which had a lever by which the coupling could be made without going between the cars when said couplings were in good order and repair. Decedent was on the south end of a coal car loaded with ties, as he approached the car to be coupled on. This last car was a coal car, and had been standing on the switch several days. It had been handled and moved by the crew of which decedent was a member each day for four or five days before he was killed. It was equipped with the usual brakes. It had been in a collision a day or so previous. Said collision shifted the load so as to interfere with the brake wheel. It was held in place by pieces of railroad ties placed in front of its north wheels. The brake was not in good repair before the collision. Decedent gave a slow-up signal just before he got down to make the coupling. After the train struck the coal car, he shook his head, indicating that the coupling had not been made. The coal car was forced upgrade 8 to 15 feet. The train stopped. The coal car then ran downgrade against the south end of the train. Decedent, after the coal ran north against the south end of the train, gave backup or slack signal to the conductor, and the engineer backed away from the coal car. When...