Monfort v. Indianapolis & Cincinnati Traction Co.

Citation128 N.E. 842,189 Ind. 683
Decision Date02 December 1920
Docket NumberNo. 23872.,23872.
CourtIndiana Supreme Court
PartiesMONFORT v. INDIANAPOLIS & CINCINNATI TRACTION CO.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Decatur County; John W. Donaker, Judge.

Action by Elmore M. Monfort against the Indianapolis & Cincinnati Traction Company. Judgment for defendant on directed verdict, and plaintiff appealed to the Appellate Court, from which the case was transferred to the Supreme Court under Burns' Ann. St. 1914, § 1394. Reversed, with instructions to grant new trial. Superseding opinion of Appellate Court, 126 N. E. 682.Myron C. Jenkins, of Greensburg, for appellant.

LAIRY, J.

Appellant began this action against appellee to recover damages on account of personal injuries which it is alleged was brought about by reason of the alleged negligence of appellee in permitting its track and railroad line at a public highway crossing to remain in a dangerous condition. The specific charge in the complaint is that the rails of the appellee's track at the said crossing were highly charged with electricity, and that appellee carelessly and negligently suffered and permitted the bonds uniting and connecting the said rails to become and remain out of repair, thereby making said track dangerous to persons and animals upon and crossing over the same. The issues were closed by a general denial. At the close of appellant's evidence, the jury by direction of the court returned a verdict for appellee, and judgment was rendered accordingly. The action of the court in directing the jury to return a verdict for appellee is assigned as a cause for a new trial.

[1] The only error assigned is that the court erred in overruling the motion for a new trial. Appellee insists that no question is presented for consideration, for the reason that the motion for a new trial does not have any memorandum attached thereto specifying the reason or reasons why such motion should be sustained as required by section 5 of the act of 1917 concerning civil procedure. Acts 1917, p. 526. The appellate court held in Wilson v. Sentman, 121 N. E. 669, that said section did not apply to a motion for a new trial, and we are content with that ruling.

[2] In view of the evidence appellant asserts that the court erred in directing the jury to return a verdict in favor of appellee. By making a motion for a directed verdict, appellee challenged the evidence introduced by appellant on the grounds that it was not sufficient to sustain a verdict in his favor. In sustaining that motion the court held that there was entire absence of any evidence to support some one or more of the facts essentially necessary to uphold a verdict in favor of appellant. In deciding the question so presented, the trial court was required to consider only the evidence most favorable to the plaintiff, excluding all conflicting evidence favorable to the defendant. All facts supported by such evidence, as well as all facts which can be rightly and reasonably inferred therefrom, must be regarded by the court as proven in passing on the motion to direct a verdict.

The rules thus stated apply to the decision of the question presented by a demurrer to the evidence. Lake Shore & Mich. Southern Ry. Co. v. Foster (1885) 104 Ind. 293, 4 N. E. 20, 54 Am. Rep. 319;Fritz v. Clark (1881) 80 Ind. 591;Milburn v. Phillips (1893) 136 Ind. 680, 34 N. E. 983, 36 N. E. 360.

The same rules apply when the question arises on a motion to direct a verdict. Curryer v. Oliver (1901) 27 Ind. App. 424, 60 N. E. 364, 61 N. E. 593; Elliott on Appellate Procedure, § 687; Howard v. Indianapolis St. Ry. Co. (1902) 29 Ind. App. 514, 64 N. E. 890.

[3] The same rules also apply when the sufficiency of the evidence to sustain a verdict is presented on appeal. Diamond Block Coal Co. v. Cuthbertson (1905) 166 Ind. 290, 76 N. E. 1060;Cleveland, etc., Ry. Co. v. Christie (1912) 178 Ind. 691, 100 N. E. 299.

[4] The rules stated do not apply, however, when the question of the sufficiency of the evidence is presented to the trial court for review by a motion for a new trial. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Baker, 128 N. E. 836 (this term); George H. Hammond & Co. v. Schweitzer (1887) 112 Ind. 246, 13 N. E. 869.

When the question of the sufficiency of the evidence is presented by a motion to direct a verdict, the court cannot weigh the evidence without invading the province of the jury.

[5] According to the evidence appellee was at the time of the accident engaged in operating an interurban railway car by means of electricity. The tracks of appellant crossed Second street in the town of Adams, a short distance north of the point where the Big Four Railroad tracks cross the same street. The...

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10 cases
  • Wildwood Manor, Inc. v. Gary Nat. Bank
    • United States
    • Court of Appeals of Indiana
    • February 9, 1970
    ...v. Stevenson (1891), 126 Ind. 532, 26 N.E. 486; Smith v. Stump (1895), 12 Ind.App. 359, 40 N.E. 279; Monfort v. Indianapolis, etc., Traction Co. (1920), 189 Ind. 683, 128 N.E. 842; Lowry v. Indianapolis Traction, etc., Co. (1920), 77 Ind.App. 138, 126 N.E. 223; Novak v. Chicago & Calumet Di......
  • White v. Bardach
    • United States
    • Court of Appeals of Indiana
    • November 26, 1968
    ...(1891), 126 Ind. 532, 26 N.E. 486; Smith v. Stump, by Next Friend (1895), 12 Ind.App. 359, 40 N.E. 279; Monfort v. Indianapolis, etc., Traction Co. (1920), 189 Ind. 683, 128 N.E. 842; Lowry v. Indianapolis Traction, etc., Co. (1920), 77 Ind.App. 138, 126 N.E. 223; Novak, Admx., etc. v. Chic......
  • Moslander v. Moslander's Estate
    • United States
    • Court of Appeals of Indiana
    • December 22, 1941
    ......Brandt, 1934, 98 Ind.App. 399, 401, 402, 189 N.E. 533;Monfort v. Indianapolis & Cincinnati Traction Co., 1920, 189 Ind. 683, 686, 128 N. ......
  • Fowler v. Norways Sanitorium, 16814.
    • United States
    • Court of Appeals of Indiana
    • June 17, 1942
    ......Indianapolis, for appellant.Murray & Mannon, of Indianapolis, for ...For a discussion thereof we call attention to the cases of Monfort v. Indianapolis & Cincinnati Traction Co., 1920, 189 Ind. 683, 686, 128 ......
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