New York, C. & St. L.R. Co. v. Shields
| Decision Date | 22 May 1916 |
| Docket Number | No. 22749.,22749. |
| Citation | 185 Ind. 704,112 N.E. 762 |
| Court | Indiana Supreme Court |
| Parties | NEW YORK, C. & ST. L. R. CO. v. SHIELDS. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allen County; J. W. Eggeman, Judge.
Action by Frank J. Shields against the New York, Chicago & St. Louis Railroad Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.F. B. Carpenter, of Cleveland, Ohio, and Walter Olds, of Ft. Wayne, for appellant. John H. Aiken, of Ft. Wayne, for appellee.
This was an action brought by appellee against appellant for damages on account of an injury alleged to have been the result of negligence on the part of appellant in the movement of its cars upon its tracks across Fulton street, in the city of Ft. Wayne, in this state, on June 20, 1913. There was a trial by jury and a verdict and judgment in favor of appellee. Appellant presents on appeal that the trial court erred in overruling its motion for a new trial.
[1] There is some evidence to support the allegations of the complaint that appellee, while lawfully traveling northward on the sidewalk on the west side of Fulton street, was struck by the first of a line of box cars which were being pushed across the street from the west of the crossing, with no person on the car, and with no signal or warning being given, and that appellee, in the exercise of due care, on account of buildings that obstructed his vision, could and did not learn of the approach of the cars until too late to avoid being struck; that he was struck by the car, knocked down, and dragged about 2O0 feet into a stoneyard, where he was discovered, placed upon an improvised stretcher, and carried to and placed upon another switch track, from which he was afterwards taken to the hospital. The defense under answer of general denial was that the injury occurred while appellee was a trespasser on the industrial switch track located about 40 feet north of the place he claims to have been found. The evidence supporting the verdict is disputed, but this court cannot order a new trial upon the grounds that such verdict is not supported by the evidence or is contrary to law.
[2] Appellant urges that the verdict of $10,000 damages is excessive. The evidence shows that appellee by the injury complained of was occasioned the loss of all the toes on his left foot, and the loss of his right leg, which was amputated four inches below the knee, that he was a man 49 years of age, in good health, and capable of and was earning $2.50 to $3 per day as a laborer, and that he suffered great pain and was caused to incur medical and hospital expenses. Under the evidence the amount of the judgment does not lead to the conclusion that the jury acted from prejudice, partiality, or corruption. Cleveland, etc., R. Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1;Indianapolis Street R. Co. v. Kane, 169 Ind. 25, 80 N. E. 841, 81 N. E. 721.
[3] It is contended that a new trial should have been granted on account of alleged misconduct of the jury and of the prevailing party. Appellant claims that the jury, in response to interrogatories submitted to it, made certain manifest repugnant answers and answers which were unsupported by the evidence for the purpose of sustaining its verdict. Without setting out the specific answers to which the court's attention is called, it is sufficient to say that such answers are to the effect that the accident occurred at the place and in the manner claimed by appellee, and that it did not occur on the industrial track, as contended by appellant. The same evidence which supports the general verdict furnished a foundation for these answers. They were not repugnant and unwarranted, and did not show a purpose clearly apparent on behalf of the jury to distort the testimony and to make a case favorable to appellee in total disregard of the evidence as appellant claims.
[4] The misconduct of the prevailing party of which appellant complained is the alleged action of appellee in procuring and attempting to procure certain testimony which it is claimed was perjured and false, known to be such by appellee, and obtained by him for the purpose of influencing the jury, and which procured testimony it is stated did have that effect. The testimony principally attached was that of John E. Golday concerning the place the injury occurred and that of certain other witnesses concerning the habits of appellee. In support of this assignment appellant filed many affidavits, and a counter showing was made by the filing of affidavits by appellee. It was thus necessary for the trial court in passing upon this cause assigned for a new trial to weigh the evidence upon the issue of fact presented. The affidavits which made up the evidence were conflicting, and this court can no more determine the weight of such conflicting evidence than it can settle conflict in the evidence given at the trial of the cause upon its merits. Stroup v. Graham, 173 Ind. 194, 89 N. E. 849, and cases there cited.
[5] Appellant claimed surprise on account of the introduction of his testimony of Golday, and also that evidence had been newly discovered which was material to appellant's cause, and which could not have been discovered with reasonable diligence. The newly discovered evidence was stated to be testimony to the effect that the witness Golday was not in Ft....
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