Newsom v. Pennsylvania R. Co.

Citation186 N.E.2d 699,134 Ind.App. 120
Decision Date13 December 1962
Docket NumberNo. 1,No. 19356,19356,1
PartiesNola Jane NEWSOM, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY and Chicago & Eastern Illinois Railroad Company, Appellees
CourtCourt of Appeals of Indiana

Berry, Kincade & Allen, Terre Haute, for appellant.

Bernard C. Craig, Brazil, for cross-appellant Chicago & Eastern Illinois R. Co.

George C. Forrey, III, Indianapolis, White, Raub & Forrey, Indianapolis, of counsel, for appellees.

Kenneth C. Miller, Brazil, for appellee, Pennsylvania R. Co.

AX, Judge.

Appellant, plaintiff below, filed her complaint against appellees for alleged personal injuries which she claimed to have suffered when she was caused to fall on the floor of the Union Station in the City of Terre Haute by reason of the alleged negligence of the appellees in the maintenance of said floor. The cause was submitted to a jury, which returned a verdict in favor of appellant, assessing damages in the amount of $15,000.00, and on which consistent judgment was entered.

Separate motions for new trial were filed by each of said appellees and both motions were sustained by the court which entered the following order:

'The court having heretofore examined the separate motions of defendants for new trial of this action and having heard oral argument thereon and having had said matter under advisement for ruling, now the court being advised sustains the separate motions of defendants for new trial of this action.'

From the granting of the motions for new trial, appellant has appealed, assigning as her only error that the trial court erred is sustaining the separate motions of appellees for a new trial.

In order to establish good practice and to further the orderly administration of justice, this court previously following Rife v. Karns (1962), Ind.App., 181 N.E.2d 239 remanded this cause to the trial judge to state in writing his reasons for having sustained the separate motions for new trial. Newsom v. The Pennsylvania Railroad Co. et al. (1962), Ind.App., 181 N.E.2d 241.

The trial court complied by filing in this court ten separate reasons for sustaining appellees' separate motions for a new trial. This court must now affirm the order of the trial court granting a new trial, unless we determine that appellant has established to our satisfaction that none of these ten reasons are valid, and that there has been 'a plain abuse of judicial discretion' and also that 'flagrant injustice has been done the complaining party' and further that the complaining party has made out 'a very strong case for relief.' As this court has said many times, unless it appers clearly that 'substantial justice has not been done,' the judgment of the trial court granting the new trial must be affirmed. In Topper v. Dunn (1961), Ind.App., 177 N.E.2d 382, this court affirmed the order of the trial court sustaining a motion for a new trial and held (p. 384):

'Until the enactment of chapter 25 of the Acts of 1959, being Burns' § 2-3201(b) (1961 Replacement), the sustaining of a motion for a new trial was not available error until the case was re-tried and a final judgment rendered. Carlson v. Roth, 1946, 117 Ind.App. 272, 71 N.E.2d 579. However, as appellant recognizes, where a new trial is granted the ruling will rarely be reversed.

"To authorize a reversal of an order granting a new trial, three things must be shown: 1. That there was a plain abuse of judicial discretion. 2. That flagrant injustice has been done the complaining party. 3. A very strong case for relief.' 4 Works' Indiana Practice, Lowe's Revision, § 61.140, p. 120.

* * *

* * *

'Appellant further urges that the granting of the new trial resulted in a flagrant case of injustice to the appellant. In respect to such contention, the language of the Supreme Court of Indiana in the case of Novak, Adm'x. etc. v. Chicago & C. Dist. Tr. Co., et al., 1956, 235 Ind. 489, 135 N.E.2d 1, is particularly noteworthy. It is there stated in 235 Ind. at page 497, 135 N.E.2d at page 5:

"* * * it is the duty of the trial judge, who also saw the witnesses and heard the evidence from their lips, on proper motion to order a new trial of the cause. This is a duty which the trial judge should exercise with careful deliberation. However, in every case where it does appear, after considering the conflicts in the testimony and weighing the evidence, that the verdict is against the clear preponderance of the evidence, it is the imperative duty of the trial judge to exercise this prerogative of his office with 'firmness for the right,' and order a new trial.'

'A new trial having been granted, a much stronger case must be...

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14 cases
  • Board of Com'rs of Henry County v. Dudley
    • United States
    • Indiana Appellate Court
    • 29 Enero 1976
    ...(1968), 142 Ind.App. 329, 234 N.E.2d 652; Hunnicutt v. Boughner (1967), 141 Ind.App. 669, 231 N.E.2d 159; Newsom v. Pennsylvania R. Co. (1962), 134 Ind.App. 120, 186 N.E.2d 699. No evidence presented at the hearing suggests a legal or proximate cause of the collision other than Dudley's int......
  • Wildwood Manor, Inc. v. Gary Nat. Bank
    • United States
    • Indiana Appellate Court
    • 9 Febrero 1970
    ...very strong case for relief from the trial court's ordering a new trial has been made by the appellant. Newsom v. Pennsylvania Railroad Company, supra (134 Ind.App. 120, 186 N.E.2d 699); Topper v. Dunn (1961), 132 Ind.App. 306, 177 N.E.2d 382; 4 Works' Indiana Practice, Lowe's Revision, § 6......
  • White v. Bardach
    • United States
    • Indiana Appellate Court
    • 26 Noviembre 1968
    ...for a new trial are correct, the court would be required to affirm the decision of the lower court. See Newsom v. Pennsylvania Railroad Company (1962), 134 Ind.App. 120, 186 N.E.2d 699; Rans v. Pennsylvania Railroad Co. (1962), 133 Ind.App. 592, 181 N.E.2d 644, 184 N.E.2d 37. Judge Hunter i......
  • Bailey v. Kain
    • United States
    • Indiana Appellate Court
    • 17 Septiembre 1963
    ...forth by the trial judge are correct, this court would be duty bound to affirm the lower court's decision. Newsom v. Pennsylvania Railroad Company (Ind.App.1962), 186 N.E.2d 699; Rans v. Pennsylvania Railroad Co. (1962), 133 Ind.App. 592, 181 N.E.2d 644, 184 N.E.2d It therefore becomes the ......
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