Pittsburgh, C., C. & St. L. Ry. Co. v. Collins

• Decision Date: 26 February 1907
• Docket Number: No. 20,795.,20,795.
• Citation: 80 N.E. 415,168 Ind. 467
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. COLLINS.

168 Ind. 467

80 N.E. 415

PITTSBURGH, C., C. & ST. L. RY. CO.

v.COLLINS.

No. 20,795.^*

Supreme Court of Indiana.

Feb. 26, 1907.

Appeal from Circuit Court, Howard County; J. F. Elliott, Judge.

Action by Thomas Collins against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.G. E. Ross, for appellant. Overton & Barnes, Nelson, Myers & Yarlott, McConnell Jenkines, and Jenkines & Stuart, for appellee.

MONTGOMERY, C. J.

Appellee brought this action to recover damages for a personal injury resulting from the alleged negligence of an engineman, while both were in the employ of the appellant. The case is in this court for the second time. Pittsburgh, etc., Ry. Co. v. Collins, 163 Ind. 569, 71 N. E. 661. It is alleged that errors were committed in overruling (1) appellant's demurrer to the first paragraph of complaint; (2) its motion for judgment upon the answers of the jury to interrogatories, notwithstanding the general verdict; (3) its motion for a new trial; and (4) its motion in arrest of judgment.

Four additional independent assignments of error have been made alleging that the employer's liability statute (Acts 1893, p. 294, c. 130) is in derogation of certain provisions of the Constitution of the United States. The office of the assignment of errors is to present for review by the Appellate Court specific rulings of the trial court. A proper assignment of error must allege that a particular decision of the trial court was erroneous, or that the complaint in a civil action does not state facts sufficient to constitute a cause of action. The statement of a mere abstract proposition will not invoke the judgment of this court when assigned independently and not involved in a decision of the lower court brought up by the record and assigned as error. The alleged unconstitutionality of the statute upon which this action is founded is not presented to this court for consideration under the fifth, sixth, seventh, or eighth assignments of error. Adams v. Pittsburgh, etc., R. Co., 165 Ind. 648, 74 N. E. 991;Pittsburgh, etc., R. Co. v. Town of Walcott, 162 Ind. 399, 401, 69 N. E. 451;Standish v. Bridgewater, 159 Ind. 386, 65 N. E. 189.

The first paragraph of complaint was expressly held to be sufficient upon the former appeal of this case, and that decision cannot be reviewed. Currier et al. v. Elliott, 141 Ind. 394, 39 N. E. 554;Lillie v. Trentman, 130 Ind. 16, 29 N. E. 405, and cases there cited.

The second and fourth assignments, alleging error in overruling appellant's motion for judgment in its favor, and in overruling its motion in arrest of judgment, have not been supported by statement, citation of authority, or otherwise in the brief, and must be deemed waived. Storer v. Markley, 164 Ind. 535, 73 N. E. 1081;Major v. Miller, 165 Ind. 275, 75 N. E. 159;O'Brien v. Knotts, 165 Ind. 308, 75 N. E. 594;Stamets v. Mitchenor, 165 Ind. 672, 75 N. E. 579. Appellant's motion for a new trial charged that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law; that the damages assessed are excessive; that the court erred in giving, at the request of appellee, instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, and in refusing to give instructions tendered by appellant numbered 1, 3, 4, 10, 12, 15, 19, 21, 22, 24, 26, 27, 28, 29, 30, and 33, and in overruling appellant's motion to strike out the words, “I did not have time,” from the answer, “No, sir; I did not have time,” made by appellee in response to the question, “You did not direct your brakeman to do so?”; that the court erred, further, in refusing to permit witness Samuel F. Johnson to answer certain questions concerning the duties of a hill conductor, and erred in connection with the admission in evidence of expectancy tables, and that the court and counsel and the jury were guilty of specific acts of misconduct. Appellant's counsel, by failure to present the same for consideration, has waived the charge of excessive damages, and the alleged errors, in giving appellee's instructions numbered 1, 2, 3, and 5, and in refusing to give instructions numbered 3, 4, 12, 19, and 21, tendered by appellant, and in excluding the proffered testimony of witness Johnson.

Instruction No. 4, given at the request of appellee, referred to the statute upon which the action was founded, stated the manner in which the issues were joined and the gist of the pleadings, and advised the jury that if the plaintiff had proved by a fair preponderence of the evidence that he was injured through the negligence of defendant's engineman, Arnold, as alleged in the complaint, he would be entitled to recover, unless they further found, from a like preponderance of evidence, that plaintiff was guilty of contributory negligence, or that the material averments of the second paragraph of answer had been established. No substantial defect in this instruction has been pointed out, and none is apparent to us. Pittsburgh, etc., Ry. Co. v. Lightheiser (Ind. Sup.) 78 N. E. 1033, 1040;Southern Indiana R. Co. v. Peyton, 157 Ind. 690, 700, 61 N. E. 722.

Instruction No. 6, of which complaint is made, in substance told the jury that contributory negligence is now a matter of defense and provable under the answer of general denial. This instruction was entirely appropriate, and not subject to criticism. The court, at appellant's request, further instructed the jury that if appellee's contributory negligence had been established by a preponderance of evidence, without regard to the source of such evidence, their verdict should be in favor of appellant. The jury was fully and correctly instructed upon this subject. City of Indianapolis v. Keeley, 79 N. E. 499;Town of Winamac v. Stout, 165 Ind. 365, 75 N. E. 158, 651;M. S. Huey Co. v. Johnston, 164 Ind. 489, 73 N. E. 996.

Instruction No. 7 embraced an order in relation to the duties of freight conductors, and charged the jury that appellee could not be bound by such order in the absence of knowledge on his part of its substance or existence, and that mere proof that the order was issued by appellant would not defeat appellee's right of recovery. Objection is made to the latter part of the instruction. It is a familiar rule that instructions must be considered as a whole, and not in detached parts. In this instruction the court was not attempting to state the basis of appellee's rights in the action, but the manifest point and purpose of the instruction was to advise the jury of the effect and extent of this order as constituting a matter of defense. Taken in connection with other instructions given, it cannot be fairly claimed to be an assumption that appellee had a conceded right of recovery, or that the jury was thereby misled or confused. Board of Commissioners v. O'Connor, 137 Ind. 622, 642, 643, 35 N. E. 1006, 37 N. E. 16.

The eighth instruction, given upon the subject of sudden peril, is criticised upon similar grounds, and for the reasons just stated we find no error in giving this instruction. It is further insisted that appellee was responsible for the peril with which he was confronted, and therefore was not entitled to an instruction excusing a mistake of judgment. We cannot concur in this view of the facts, for reasons given further along in discussing the evidence. In our opinion the instruction was properly given. Penn Co. v. McCaffrey, 139 Ind. 430, 435, 436, 38 N. E. 67, 29 L. R. A. 104;Clarke v. Penn Co., 132 Ind. 199, 200, 31 N. E. 808, 17 L. R. A. 811, and cases cited.

The ninth instruction charged the jury that under the pleadings the averment that at the time of the accident and of the commencement of this action appellant was a railway corporation organized under the laws of this state was admitted, and that affirmative evidenceof such fact was not required. A similar instruction has been very recently approved by this court. Pittsburgh, etc., R. Co. v. Lightheiser (Ind. Sup.) 78 N. E. 1033, 1037;Cincinnati, etc., R. Co. v. McDougall, 108 Ind. 179, 8 N. E. 571;Adams Express Co. v. Hill, 43 Ind. 157;United Brotherhood, etc., v. Dinkle, 32 Ind. App. 273, 69 N. E. 707.

Complaint is made of instruction No. 10, given upon the subject of estimating damages. In the enumeration of elements for the consideration of the jury, an instruction approved in the case of Pittsburgh, etc., R. Co. v. Montgomery, 152 Ind. 1, 26, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301, was literally copied. In this respect the instruction was correct. Wabash, etc., R. Co. v. Morgan, 132 Ind. 438, 31 N. E. 661, 32 N. E. 85;Cleveland, etc., R. Co. v. Newell, 104 Ind. 264, 3 N. E. 836, 54 Am. Rep. 312. The instruction is further criticised for the reason that it does not limit the jury to the evidence given on the trial, but permits them to use their own judgment in determining what amount of damages they will award. This objection was long ago answered by this court. In the case of City of Indianapolis v. Scott, 72 Ind. 196, Worden, J., speaking to this point, said: “The court enumerated certain matters that formed the elements of damages. But no jury of reasonable intelligence could have been misled by the charge into the supposition that such matters could be considered unless shown by the evidence. As to the latter part of the charge, the jury could not suppose they were authorized to find anything except from the evidence.” See, also, Poland v. Miller, 95 Ind. 387, 391, 48 Am. Rep. 730;Louisville, etc., Ry. Co. v. Falvey, 104 Ind. 409, 429, 3 N. E. 389, 4 N. E. 908;Ohio, etc., Ry. Co. v. Stein, 140 Ind. 61, 70, 39 N. E. 246. The first instruction tendered by appellant was a peremptory direction to the jury to return a verdict in its favor. This instruction was manifestly unwarranted and rightly refused.

The tenth instruction, tendered and refused, charged the jury that if the caboose in which appellee was riding was equipped with a brake, by...