Muncie Street Railway Company v. Maynard

• Decision Date: 17 November 1892
• Docket Number: 565
• Citation: 32 N.E. 343,5 Ind.App. 372
• Parties: THE MUNCIE STREET RAILWAY COMPANY v. MAYNARD
• Court: Indiana Appellate Court

32 N.E. 343

5 Ind.App. 372

THE MUNCIE STREET RAILWAY COMPANY v. MAYNARD

No. 565

Court of Appeals of Indiana

November 17, 1892

From the Delaware Circuit Court.

Judgment affirmed.

C. E Shipley, R. S. Gregory and A. C. Silverburgh, for appellant.

W. W Orr, J. W. Ryan and W. A. Thompson, for appellee.

OPINION

NEW, J.

This was an action by the appellee against the appellant to recover damages on account of injury to appellee's horses, carriage and harness, caused by appellant's cars on the 23d day of November, 1890.

A demurrer to the complaint for want of facts was overruled, and exceptions taken. Defendant filed an answer in general denial, and upon issues thus joined, a jury returned a general verdict for the plaintiff, assessing his damages at the sum of one hundred and ninety dollars. With their general verdict the jury returned answers to twenty-seven interrogatories submitted to them at the request of the defendant. Said interrogatories and answers thereto are as follows:

"1st. Upon what street or avenue was the plaintiff travelling at the time when the injury to his horses and other property occurred? A. Kilgore avenue.

"2d. What was the width of the avenue at the point where the injury to his property occurred? A. Sixty feet.

"3d. Upon what part of the avenue, at the point where plaintiff's property was injured, was the track of the defendant company's railway laid and placed? A. Near center.

"4th. Upon which side of the railway track was the plaintiff driving at the time of the collision between his horse and the defendant's motor? A. East.

"5th. What was the condition of the grounds east from where the plaintiff was driving, as to being open; and if open, state what obstructions, if any, were upon or in such grounds that prevented plaintiff from driving his carriage eastward away from the track of defendant's railway when its train was approaching? A. Open, and no obstruction.

"6th. At what distance was defendant's train from plaintiff when plaintiff first saw it. A. One hundred and fifty feet.

"7th. Did not Cory E. Cropper notify the plaintiff that the street cars were coming toward plaintiff, and if so, at the time when said notice was given, how far was the train from the plaintiff? A. Yes, two hundred feet.

"8th. Was not the defendant's train, at the time when Cropper notified plaintiff that it was coming, as much as two squares or more away from plaintiff, and if that be not the correct distance, then state how far it was away from plaintiff? A. No, about two hundred feet.

"9th. Did not plaintiff, at the time he was driving his carriage on Kilgore avenue, know the railroad track then on the avenue was the track used by the defendant company in transacting its street railway business? A. Yes.

"10th. Did the plaintiff not know, at and before he drove upon and along Kilgore avenue, on the day and at the time the collision between the defendant's train and his property occurred, that the defendant ran trains over and along her lines of railway, in the city of Muncie, daily and frequently? A. Yes, except on Sunday.

"11th. Had the plaintiff not seen the cars of the defendant company frequently running over the lines of her road, in the city of Muncie, before the day on which the injury to his property occurred? A. Yes.

"12th. Did not the plaintiff see and know, at and before the collision between the defendant's engine and his property, that the defendant had its railroad line upon Charles street, and that it connected with defendant's railroad line on Kilgore avenue by a circular curve from Charles street to its line on Kilgore avenue? A. Yes.

"13th. Upon what street did the plaintiff first discover the defendant's train and cars, at the time when the accident and injury to his property occurred? A. Charles.

"14th. Is not Elliott street 115 feet east of Kilgore avenue? and was it not on November 23, 1890, an improved street? A. Yes.

"15th. Did not the defendant company stop her train at that street and take aboard passengers? and was not that train the same train that collided afterwards, on the same trip, with plaintiff's property? A. Yes.

"16th. At what speed was the defendant's train running at the time and before it collided with the plaintiff's property? A. From four to six miles an hour.

"17th. What noise, if any, did defendant's train or engine make as it approached Kilgore avenue, where plaintiff was? A. Rumbling noise.

"18th. Was not the plaintiff warned and notified of the approaching train of defendant when the train was about 200 feet or more from him? A. Yes.

"19th. Could not the plaintiff have driven through the open ground east from the railroad track on Kilgore avenue and thereby escaped a collision with the cars? A. Yes, if his team had not been frightened and thereby become uncontrollable.

"20th. Was not plaintiff's horse that was injured and died afraid of steam engines and cars, and did not the plaintiff know that fact before the injury occurred? A. To some extent, would throw up its head and squat at the approach of engine or cars.

"24th. At what time in the day did the collision between defendant's train and plaintiff's property occur? A. Between 3 and 4 o'clock P. M.

"25th. What was the character of the day, as to its being fair or otherwise? A. Fair.

"26th. At what distance could the noise produced by defendant's train be heard, at the time and place of the collision? A. Not over one square from point of collision.

"30th. What damage do you assess in your general verdict against the defendant company for injuries done to plaintiff's horse, that is yet living? and for what injuries to such horse do you assess such damages? A. Fifteen dollars for injuries sustained by fright.

"31st. What injury was done to plaintiff's horse, which he was driving to his carriage on the day of the collision? and which horse is yet living? State particularly the injury done and whether the same was done by defendant company. A. Ffteen dollars for injuries sustained by being frightened by engine and car approaching on defendant's street car line.

"32d. What damages do you assess for injuries done to plaintiff's carriage? A. Fifteen dollars.

"33d. What damages do you assess against the defendant company for injuries done to the plaintiff's harness? A. Eight dollars."

The defendant moved the court for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict, and also filed a motion for a new trial. Each of said motions was overruled, and judgment given for the plaintiff on the general verdict in the sum of one hundred and ninety dollars and costs.

The appellant appeals and assigns as errors:

1st. The overruling of the demurrer to the complaint.

2d. The overruling of the motion for judgment on the answers to the interrogatories notwithstanding the general verdict.

3d. The overruling of the motion for a new trial.

The question raised by the demurrer is not discussed by counsel for appellant, and under the well settled rule it is not necessary for us to consider the same.

The answers to the interrogatories are not, in our judgment, so inconsistent with the general verdict as to control it, and the court did not, as we think, err in overruling said motion for judgment on the special findings.

The law in this State on the point in question is settled as laid down in Works Practice:

"Where the special finding of fact and the general verdict are so inconsistent that both can not stand, the former must control, otherwise the general verdict must stand." 2 Works Practice, section 861.

Answers to interrogatories will not control the general verdict unless said answers and general verdict are so conflicting that both can not stand, and the record must show this conflict beyond the possibility of being removed by any evidence that would have been admissible under the issues, or the general verdict must stand. Adams v. Cosby, 48 Ind. 153; Grand Rapids, etc., R. R. Co. v. McAnnally, 98 Ind. 412; Brown v. Searle, 104 Ind. 218, 3 N.E. 871; Cox v. Ratcliffe, 105 Ind. 374, 5 N.E. 5.

The court should not consider the evidence introduced in determining whether judgment should be rendered on the answers to the interrogatories. Cox v. Ratcliffe, supra.

But it is the duty of the court to uphold the general verdict if any evidence, admissible under the issues, could have been introduced that would maintain it.

The answers to the interrogatories in this case fail to show that the appellee was not rightfully upon said avenue, or that his negligence in any way contributed to the injury of his property.

Among other reasons stated in appellant's motion for a new trial is the ruling of the court on certain questions of evidence, but counsel fail to discuss the questions thus raised, but simply call our attention to them, and ask that they be considered by this court.

The rule, as often stated, is that errors assigned and not argued are waived. Tracewell v. Peacock, 55 Ind. 572; Griffin v. Pate, 63 Ind. 273; Goldsberry v. State, ex rel., 69 Ind. 430; Yeakle v. Winters, 60 Ind. 554; Green v. Elliott, 86 Ind. 53 (70). And in view of this rule we must pass these questions without deciding them.

Appellant also complains on account of the court's refusal to submit to the jury interrogatories numbered 21, 22, 23, 27, 28 and 29, which were prepared by appellant and furnished to the court.

Each of said interrogatories is founded upon the theory that if appellee could have travelled some other street than Kilgore avenue and thus have avoided meeting said cars it was his duty to have done so, and his failure to so do was negligence that would prevent him from recovering in this action. The court properly refused to submit said interrogatories...