Monfort v. Indianapolis & Cincinnati Traction Co.

• Decision Date: 02 April 1920
• Docket Number: No. 10285.,10285.
• Court: Indiana Appellate Court
• Parties: MONFORT v. INDIANAPOLIS & CINCINNATI TRACTION CO.

126 N.E. 682

MONFORT

v.INDIANAPOLIS & CINCINNATI TRACTION CO.

No. 10285.

Appellate Court of Indiana, Division No. 2.

April 2, 1920.

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

Action by Elmore M. Monfort against the Indianapolis & Cincinnati Traction Company. From a judgment on a directed verdict for defendant, plaintiff appeals. Affirmed.

Myron C. Jenkins, of Greensburg, for appellant.

Joseph R. Morgan, of Indianapolis, and Thomas E. Davidson, of Greensburg, for appellee.

McMAHAN, J.

Appellant began this action against appellee to recover damages on account of personal injuries which it is alleged were 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. Appellant filed a motion for a new trial on the grounds: (1) That the verdict of the jury is not sustained by sufficient evidence; (2) that it is contrary to law; (3) that the court erred in directing the jury to return a verdict for appellee; and (4) that the court erred in refusing to admit certain evidence.

[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. This 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] The first, second, and third specifications of the motion for a new trial will be considered together. These specifications require a consideration of the evidence. The appellee having introduced no evidence on the trial, it becomes necessary for us to ascertain whether appellant's evidence, when construed most favorably to appellant, is sufficient to show that appellant's injuries were occasioned by reason of the alleged negligence of appellee.

[3] The evidence shows that: At the time of appellant's injuries and prior thereto, appelleewas operating an interurban railway by the use of electrical power; that on the day of the injury appellant was driving a horse attached to a wagon in which he was riding, and when he was crossing the appellee's railroad on a public highway his horse suddenly became uncontrollable and ranaway, and in so doing appellant was thrown out of his wagon and injured; that near...