Pennsylvania R. Co. v. Martin

• Decision Date: 14 December 1951
• Docket Number: No. 18204,18204
• Citation: 102 N.E.2d 394,122 Ind.App. 28
• Parties: PENNSYLVANIA R. CO. v. MARTIN.
• Court: Indiana Appellate Court

Page 394

102 N.E.2d 394

122 Ind.App. 28

PENNSYLVANIA R. CO. v. MARTIN.

No. 18204.

Appellate Court of Indiana, in Banc.

Dec. 14, 1951.

Barrett, Barrett & McNagny, J. A. Brugeman, Ft. Wayne, for appellant.

Fagan & Daugherty, Wm. J. Regan, Gary, Ryan & Chester, Valparaiso, for appellee.

CRUMPACKER, Judge.

This action grows out of a collision between a small gasoline powered track car, belonging to and operated by the appellant, and an automobile driven by one Mike Trizanski, on September 23, 1945, at the intersection of the appellant's tracks and 15th Avenue in the City of Gary, Indiana. The appellee was in the employ of the appellant as a section hand and, in the course of his employment, was riding on said track car when the collision in controversy occurred and as a result thereof suffered personal injuries. Attributing the accident to the appellant's negligence he brought this suit, under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for his injuries and after a trial, without the intervention of a jury, the court found the facts specially and stated conclusions of law thereon favorable to the appellee and judgment in the sum of $2,000 went accordingly. Without seeking a new trial the appellant brings us a record which contains nothing but the special findings of fact, the conclusions of law and the judgment. The only complaint made is that the court erred in each of its conclusions of law on the facts as found.

The appellee asks us to affirm the judgment without consideration of alleged error because no motion for a new trial was filed below and the trial court had no opportunity to review its conclusions of law in respect to the questions the appellant seeks to present on appeal. For many years it was the law in this state that no question as to the correctness of conclusions of law, in a case tried to the court in which the facts had been found specially, could be raised by a motion for a new trial. In other words, such error should be assigned independently and, from the court's ruling on objections to its conclusions of law, a direct appeal would lie after judgment. Radabaugh v. Silvers, Administrator, 1893, 135 Ind. 605, 35 N.E. 694; Wolverton v. Wolverton, 1904, 163 Ind. 26, 71 N.E. 123; Rooker v. Ludowici Celadon Co., 1913, 53 Ind.App. 275, 100 N.E. 469. Since September 2, 1940, however 'If, in the trial court, a motion for a new trial is filed, each error relied upon, however and whenever arising up to the time of the filing of said motion, may be separately specified therein as a ground therefor, and an assignment of error to the effect that the trial court erred in overruling said motion shall be sufficient to raise said asserted error on appeal.' Rule 2-6. It is clear that the Supreme Court, by the adoption of this rule, had no intention of abolishing the former practice in this respect as the rule specifically provides: 'Errors which now (Sept. 2, 1940) must be assigned independently may still be so assigned if desired.' The appellee insists, however, that Rule 2-6 must be read in connection with Rule 1-8, adopted and effective at the same time, which provides: 'On a motion for a new trial in an action tried without a jury, the court may open the judgment, if one has been entered, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions, and direct the entry of a new judgment.' When these two rules are read together, the appellee contends, it is the manifest intention of the Supreme Court that no question, in a case tried to the court without a jury, can be presented on appeal until the trial court has had an opportunity to review its alleged error through a motion for a new trial.

We find nothing in the two rules that justifies such a construction. If the appellant had seen fit to assign error based on the conclusions of law as grounds for a new trial, rather than independently, and had then attempted to appeal after judgment but without a ruling on the motion, there would be merit in the appellee's position. The record, however, presents no such situation. The appellant assigned the error complained of independent of a motion for a new trial, as it had the right to do, and no such motion was necessary as a condition precedent to its presentation here. Rule 1-8 is operative only in the event a motion for a new trial is filed and when none is necessary to present a question on appeal the rule remains wholly outside the problem. Furthermore there is no basis in reason or logic for a rule requiring a litigant, who is satisfied with the finding of facts and complains only of the law the court applies thereto, to seek to have the facts found again.

As the sole question before us is the sufficiency of the special findings of fact to sustain conclusions of law favorable to the appellee, an analysis of such findings becomes necessary. Such an analysis appears in the appellant's brief and, as it goes unchallenged, we accept it as fair and accurate. It states as follows:

'The accident occurred in the intersection of Appellant's tracks and Fifteenth Avenue in Gary. At that point, Fifteenth Avenue was about thirty-six (36) feet from curb to curb. It ran in an east and west direction and was intersected by Appellant's tracks running in a general northwest-southeast direction at an angle of about thirty-five (35) degrees. Appellant had two main tracks, No. 1 track, the eastbound main, and to its north, No. 2 track, the west bound main. At each side was a dead track no longer in use.

'The plaintiff and a crew of employees under the charge of Assistant Foreman Walker, approached this crossing with the intention of making some repairs. They rode on a track car which was insulated so as not to activate the Flashers and...