New York Cent. R. Co. v. Milhiser

• Citation: 106 N.E.2d 453,231 Ind. 180
• Decision Date: 11 June 1952
• Docket Number: No. 28938,28938
• Parties: NEW YORK CENTRAL R. CO. v. MILHISER.
• Court: Supreme Court of Indiana

Page 453

106 N.E.2d 453

231 Ind. 180

NEW YORK CENTRAL R. CO. v. MILHISER.

No. 28938.

Supreme Court of Indiana.

June 11, 1952.

Baker & Daniels, Indianapolis, Christian & Waltz, Noblesville, for appellant.

Seth S. Ward, Indianapolis, for appellee.

GILKISON, Judge.

Appellee filed his amended complaint in one paragraph seeking a judgment in damages for personal injuries allegedly sustained in a railroad crossing accident which occurred about 3:30 P.M. December 19, 1945, when a passenger automobile operated by appellee, was struck on a public grade crossing in Marion County, Indiana, by a locomotive drawing a train of the appellant. It is alleged that appellant's locomotive and train of cars was traveling westward on the north track of a double track railroad intersecting the north and south highway upon which appellee was traveling northward. It is averred that appellant, in approaching the crossing at the time, did not sound the whistle or ring the bell on the locomotive as required by statute and that the collision and resulting injuries to appellee were proximately caused by this negligence.

Appellant put the amended complaint at issue by an answer agreeable with our Rule 1-3, and a second paragraph of answer admitting the collision, but averring that at the time, appellee was working for the Brandts Furniture Company of Celina, Ohio, and that his injuries arose out of and in the course of his employment. That after the collision appellee made application for benefits under the Workmen's Compensation Laws of Ohio and that he has been paid $10,298.06 and is still receiving benefits for the injuries so received. It is averred that this constitutes a settlement with his employer for the injuries suffered by appellee, and for which he sues.

A demurrer to the second paragraph of answer was sustained.

The case was tried by jury. At the close of plaintiff's evidence, defendant moved for a peremptory instruction, which motion was denied. The motion was renewed at the close of all the evidence and was denied.

The verdict was for the appellee, fixing his damage at $50,000. A motion for new trial based on fifteen reasons timely filed, was overruled. Judgment was duly rendered on the verdict from which the appeal is taken.

Four alleged errors are assigned. Appellant asserts correctly that the first three of these present the same question--'that the verdict is not sustained by sufficient evidence.' The fourth reason is that it was error to sustain the demurrer to the second paragraph of answer. We shall now consider the latter assigned error. In substance it is: Does the acceptance of Workmen's compensation for an injury, under the law of a state other than Indiana, constitute a settlement of damages sustained by a tort committed in Indiana by a person other than the employer.

Indiana's Workmen's Compensation Act is binding upon Indiana employers and their employees only, §§ 40-1201, 40-1202 et seq., Burns' 1952 Replacement. § 3.4 Small's Workmen's Compensation Law of Indiana.

§ 40-1202 Burns' 1952 Replacement, providing:

'From and after the taking effect of this act [ §§ 40-1201-40-1414, 40-1503-40-1704], every employer and every employee, except as herein stated, shall be presumed to have accepted the provisions of this act, respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby; * * *.'

and § 40-1213, providing that:

'Whenever an injury or death, for which compensation is payable under this act [ §§ 40-1201--40-1414, 40-1503--40-1704], shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death may commence legal proceedings against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this act. In such case, however, if the action against such other person is brought by the injured employee or his dependents and judgment is obtained and paid, and accepted or settlement is made with such other person, either with or without suit, then from the amount received by such employee or dependents there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee of dependents, plus the medical, surgical, hospital and nurses services and supplies and burial expenses paid by the employer and the liability of the employer to pay further compensation or other expense shall thereupon terminate. * * *'

refer only to Indiana employers and their employees. I could not embrace employees of employers in other states operating under the Workmen's Compensation Laws of such other states. Each of these sections specifically limit their application to liabilities 'under this act'. They do not apply to compensation liabilities or payments under the Workmen's Compensation Laws of other states. § 40-1213 supra of the statute is a protection provided for the employer and not for a negligent third party. Such third party is legally liable for the full amount of damages caused by his negligence. He has no concern with any payments between the employer and employee so long as he is safe from double liability. Forcum-James, Inc., v. Johnson, 1945, 115 Ind.App. 655, 659, 59 N.E.2d 730. Weis v. Wakefield, 1941, 111 Ind.App. 106, 116, 38 N.E.2d 303. Small's Workmen's Compensation Laws of Indiana, § 11.12 pp. 352, 354. Mullins v. Bolinger, 1944, 115 Ind.App. 167, 171, 55 N.E.2d 381, 56 N.E.2d 496, and cases cited.

In the State of Ohio it seems to be the law that,

'An employe who has been injured or the personal representative of an employe who has been killed in the course of his employment, after having applied for and received an award under the workmen's compensation law, and after such award has been paid in full, may maintain an action against a stranger for damages for negligently causing the same personal injury.'

Page's Ohio General Code 1-A, § 1465-72; Biddinger v. Steininger-Taylor Co., 1915, 18 Ohio N.P., N.S., 42; 25 Ohio Dec. 603; Ohio Traction Co. v. Washington, 1916, 6 Ohio App. 273; Vayto v. River Terminal & Ry. Co., 1915, 18 Ohio N.P., N.S., 305; Trumbull Cliffs Furnace Co. v. Shachovsky, 1924, 111 Ohio St. 791, 146 N.E. 306.

So in determining the demurrer to appellant's second paragraph of answer, it cannot matter whether the law of Indiana or the law of Ohio applies, since, so far as this question is concerned, the law in each state is the same.

The court did not err in sustaining appellee's demurrer to the second paragraph of answer.

In determining the sufficiency of the evidence to sustain the verdict we are bound by the rule that if there is some evidence, or reasonable inferences that may be drawn from the evidence, to sustain each material element essential to recovery we must affirm the judgment. On appeal we may not weigh the evidence. Therefore, we may consider only the evidence most favorable to the appellee.

There is evidence that appellee was traveling north toward the railroad crossing on the public highway; that there were trees on the right side of the highway in the direction from which the train was coming. That there is a hedgerow and large trees on the south side of and paralleling the railroad tracks, obscuring the view to the northeast. It was a dark, snowy, cloudy day. At the time of the collision it was snowing and blowing. The estimated speed of the train was seventy-five or eighty miles per hour, and no whistle was sounded and no bell was rung as the train approached the crossing, as required by law. Appellee stopped when about twenty feet south of the south rail of appellant's tracks and looked both ways for approaching trains but saw none, and then he started across. He was fifteen or twenty feet from the track the train was on, when he first saw the approaching train a short distance away. He saw some smoke but did not know whether it came from a house or from a train that had passed. The crossing was full of holes and ruts, and at the time of the accident was covered with snow and ice. The snow was 'boiling up' from under the moving train, and it and the smoke and steam from the locomotive smokestack was floating over the locomotive right around the engine and the left side of the cab so that the vision of the fireman on the engine was obstructed.

This evidence is sufficient to sustain each material averment of the complaint as to the negligence of the appellant.

It has been held many times that all reasonable presumptions are indulged on appeal in favor of the rulings and judgments of a trial court, that the record must exhibit the errors for which the reversal is sought, and that a court of appeals will not presume anything in favor of appellant to sustain his alleged error. Cadwell v. Teaney, 1927, 199 Ind. 634, 641, 157 N.E. 51; Washington Hotel Realty Co. v. Bedford Stone, etc., Co., 1924, 195 Ind. 128, 136, 143 N.E. 156; Schell v. Schell, 1927, 199 Ind. 643, 646, 158 N.E. 594; Coleman v. State, 1925, 196 Ind. 649, 652, 149 N.E. 162; Jackson v. State, ex rel. Board of Com'rs, 1924, 194 Ind. 130, 135, 142 N.E. 1; Straw v. State, 1925, 197 Ind. 606, 609, 149 N.E. 430, 151 N.E. 695.

In view of the general verdict in this case and the action of the trial judge in overruling the motion for new trial questioning the sufficiency of the evidence, no question is presented to this court as to the proximate cause of appellee's injuries, since this matter has been determined by the jury and the trial judge from the conflicting evidence in the case. This determination is founded upon ample evidence and is binding upon us.

It has been said with authority that the presumption in favor of the rulings of the trial court is one of the strongest presumptions in the consideration of a cause on appeal, and this presumption is...