Rhodius v. Johnson

• Decision Date: 30 March 1900
• Docket Number: 2,891
• Citation: 56 N.E. 942,24 Ind.App. 401
• Parties: RHODIUS ET AL. v. JOHNSON
• Court: Indiana Appellate Court

56 N.E. 942

24 Ind.App. 401

RHODIUS ET AL. v. JOHNSON

No. 2,891

Court of Appeals of Indiana

March 30, 1900

From the Marion Superior Court.

Affirmed.

J. W Holtzman, J. M. Leathers and H. N. Spaan, for appellants.

W. A Pickens, L. A. Cox and S.W. Kahn, for appellee.

OPINION

COMSTOCK, J.

Appellee sued appellants for injuries sustained by her in consequence of falling down an elevator shaft on premises owned by appellant Rhodius, and by her leased to appellant Emminger, who used said premises for saloon purposes. A trial by jury resulted in a verdict in favor of appellee against the appellants for $ 2,000. With the general verdict, the jury returned answers to interrogatories. Judgment was rendered on the general verdict for the amount fixed therein. The appellants have assigned as error the action of the court (1) in overruling appellants' motion to instruct the jury to find for the appellants at the close of the appellee's evidence; (2) in overruling the motion of appellants to render judgment in their favor on the answers to the interrogatories returned by the jury; (3) in overruling appellants' motion to submit to the jury interrogatories numbered three, four, seventeen, eighteen, thirty, thirty-one, thirty-two, forty, forty-one, sixty, sixty-one, sixty-three, sixty-five, and sixty-six requested by appellants; (4) in overruling appellants' motion for a new trial.

The first specification in the assignment of errors is not the subject of an independent assignment, but is a reason for a new trial. Upon another ground the merits of the question sought to be thus raised can not be considered, because appellants, by the introduction of evidence after the court had refused to instruct the jury to find for them, waived their motion. Elliott's App. Proc. § 687; Geary v. Bangs (Ill. Sup.), 138 Ill. 77, 27 N.E. 462; Grand Trunk R. Co. v. Cummings, 106 U.S. 700, 1 S.Ct. 493, 27 L.Ed. 266.

It is insisted by counsel for appellee, before entering upon the discussion of the second assignment, viz., the overruling of appellants' motion for judgment in their favor upon the answers given by the jury to the interrogatories propounded, that no question is presented, because it does not appear that the interrogatories and answers were filed, or in any way made a part of the record. In this view we can not concur. The statute, § 555 Burns 1894, § 546 Horner 1897, provides that interrogatories propounded to the jury are to be recorded with the verdict. It clearly appears from the record that this was done.

It is contended by counsel for appellants that the answers to interrogatories can not be made to harmonize with the general verdict upon any hypothesis. This position is based upon the claim that these answers showed that appellee saw the place into which she afterwards stepped was dark; that she had sufficient time to look and ascertain the kind of place she was stepping into; that she therefore had no excuse for her failure to exercise ordinary care to avoid injury; that she exercised no care, and, without excuse for not using care, walked into the elevator shaft. The following is a fair summary of the answers to the interrogatories pertinent to this question. On the day she was injured plaintiff went to the saloon to see her brother on business. About one year before the accident she had been in the club room of the saloon. She had been in the blue room, but on the day she received the injury she did not know the location of nor the way to the blue room. She was invited, either directly or impliedly, to go into the blue room by appellant Emminger. She attempted to go there to rest and for refreshment. Neither of the defendants had notice that plaintiff was attempting to get into the blue room. The passageway through which she attempted to enter said room was lighted sufficiently to discern objects therein. She could see the door into which she entered at the time she was injured. It was standing open, just before she fell into the elevator pit, from one foot to eighteen inches. She opened it wider in order to pass through. She could plainly see that it was open. There was no electric light burning in the ceiling of the passageway nor "down into the cellar", so as to shed light into the elevator pit into which she fell. She was not paying attention to just where she was going at the time she went into the door of the elevator. She did not look where she was going just before she fell. She did not know where the door led to. She could see that the place she was going into was dark. She could have seen what kind of place she was going into if she had looked just before she fell. She had time to look about her carefully just before she put her hand on the elevator door, and ascertain what kind of place she was going into. It was light enough to see about her in the passageway just before she opened the elevator door. She was not acquainted with the doors, nor where they led. If she had paused a moment at the door of the elevator, and looked at what was before her, she could have seen what kind of place she was attempting to go into.

In passing upon this question, it must be remembered that every presumption will be indulged in favor of the general verdict. It finds that appellee was without fault proximately contributing to her injury; that she was at all times exercising due care; that at any point where she appeared not to have exercised the care required of an ordinarily prudent person under the same circumstances there were facts or circumstances indicating that she did exercise such care; and that "if, taking all the special findings together and adding to them any other fact that might have been proved under the issues, an irreconcilable conflict with the general verdict can be avoided, the answer to the interrogatories will not be allowed to control." Under the issues, other facts might have been proved, and the seemingly irreconcilable conflict claimed to exist have been avoided. Besides, appellee was not required to look at every place she stepped. She had the right to rely upon appellants' keeping their premises in a reasonably safe condition for those invited upon them.

In Amidon v. Gaff, 24 Ind. 128, the court said: "The special findings override the general verdict only when both cannot stand, and this antagonism must be apparent upon the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, before the court can be successfully called upon to direct judgment in favor of the party against whom a general verdict has been rendered by a jury upon their oath."

In Pittsburgh, etc., R. Co. v. Martin, 82 Ind. 476, there was a general verdict, with answers to interrogatories. It appeared from the answers to the interrogatories that the plaintiff was driving upon a highway approaching the track of the defendant, and before he arrived at the track he looked in the direction from which the train was approaching, and saw it coming, about ten rods distant, at the rate of twenty-five miles an hour, and although he had not yet come upon the track, he arose to his feet, and whipped his horses upon the track. The court held that the general verdict in favor of the plaintiff must prevail, following the rule laid down in Amidon v. Gaff, supra. See, also, City of Ft. Wayne v. Patterson, 3 Ind.App. 34, 29 N.E. 167; City of Huntington v. Burke, 21 Ind.App. 655, 52 N.E. 415; Sponhaur v. Malloy, 21 Ind.App. 287, 52 N.E. 245; Louisville, etc., R. Co. v. Creek, 130 Ind. 139, 14 L. R. A. 733, 29 N.E. 481, and authorities there cited. Also, Shoner v. Pennsylvania Co., 130 Ind. 170, 28 N.E. 616.

In Stevens v. City of Logansport, 76 Ind. 498 appellant, who was the plaintiff below, in the night-time, when it was too dark to see the condition of the street, made a rapid succession of steps or leaps from six to ten feet each in crossing the street in a locality in which he was not familiar, and alighted in a ditch, causing himself injury. The trial court rendered a judgment on the interrogatories against Stevens, who had received a general verdict in his favor. The Supreme Court reversed the judgment, saying: "The rule is settled by a long and unvarying line of decisions, that the general verdict shall not be controlled by the answers to interrogatories, if reconcilable therewith upon any supposable state of facts provable under the issues in the case. Higgins v. Kendall, 73 Ind. 522. It necessarily follows that, in considering whether the facts specially found are irreconcilable with the general verdict, no reference can be made to the evidence actually adduced on the trial. The question to be decided is not whether, in the light of the evidence adduced, the general verdict is inconsistent with the facts found; the remedy in case of such an inconsistency is a new trial. But, upon the motion for judgment non obstante, the general verdict prevails over the special findings, if there could have been, under the issues, proof of supposable facts, not inconsistent with those specially found, sufficient to sustain the general verdict; or, in other words, sufficient to reconcile the general verdict with the special answers. * * * But, even if he possessed no knowledge of its previous condition, he had a right to presume that the street was in reasonably safe order, and that, in crossing it, he would not incur unusual risks, or meet obstructions inconsistent with the safety of those who in the ordinary ways use a frequented street. That it was or had been such a street may be presumed in support of the verdict. Whether the appellant was justifiable in attempting to cross the street in the manner stated, depended on the circumstances and motive or necessity which impelled him. If men of...