Rans v. Pennsylvania R. Co.

• Decision Date: 26 December 1963
• Docket Number: No. 19429,No. 1,19429,1
• Citation: 136 Ind.App. 1,194 N.E.2d 828
• Parties: Delbert R. RANS, Jr., Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Appellee
• Court: Indiana Appellate Court

Page 828

194 N.E.2d 828

136 Ind.App. 1

Delbert R. RANS, Jr., Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Appellee.

No. 19429.

Appellate Court of Indiana, Division No. 1.

Dec. 26, 1963.

Rehearing Denied Jan. 31, 1964.

Arthur Metzler, Rochester, Charles C. Campbell, Rochester, Kizer & Neu, Plymouth, for appellant.

Crumpacker, May, Beamer, Levy & Searer, South Bend, for appellee

COOPER, Judge.

This is an appeal from the granting of a motion for a new trial under the provisions of § 2-3201(b), Burns', 1961 Supplement.

The appeal originated in the Fulton Circuit Court and we remanded it to the trial court with instructions to state its reasons in writing as to why the new trial was granted. For original proceedings, see Rans v. Pennsylvania Railroad Co. (1962) 133 Ind.App. 592, 181 N.E.2d 644; also, Harmon v. Arthur (1963) Ind.App., 189 N.E.2d 719; Rife v. Karns (1962) 133 Ind.App. 226, 181 N.E.2d 239; Newsom v. Pennsylvania Railroad Co. et al. (1962) 133 Ind.App. 582, 181 N.E.2d 240.

Pursuant thereto, the trial court has filed its special bill of exceptions including specifically therein why such motion for a new trial was granted, and the same is now a part of the transcript of record of this cause. The same in substance is that the evidence in this case is undisputed that the defendant, at the time the accident occurred, had stopped its train on the crossing only so long as necessary to complete a switching operation and had not permitted it to remain standing long enough to become an abstruction. Under these circumstances, there was no violation by the defendant of the 'stop and remain standing' statute. Furthermore, in driving his car into the side of the locomotive, on which there were several lighted lights, at a street crossing amply illuminated by street lights, plaintiff was guilty of contributory negligence as a matter of law.

We are now concerned with the propriety of the trial court's action. We find the rule of law applicable to the granting of a new trial by the trial court is well stated in § 61.140, Vol. 4, p. 120, Lowe's Works and Practice Revised, wherein it is stated:

'Where a new trial is granted by the trial court, the ruling will rarely be reversed. The granting of a new trial is a question of sound discretion, which will not be disturbed in an appellate court unless a flagrant case of injustice is made to appear.

'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.' (Also see authorities cited therein.)

See Topper v. Dunn (1961) 132 Ind.App. 306, 177 N.E.2d 382.

It now appearing that one of the reasons that the trial court granted...