Sherman v. Indianapolis Traction Co.
| Decision Date | 17 November 1911 |
| Docket Number | No. 7,358.,7,358. |
| Citation | 96 N.E. 473,48 Ind.App. 623 |
| Parties | SHERMAN v. INDIANAPOLIS TRACTION CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hendricks County; James L. Clark, Judge.
Action by Charles H. H. Sherman against the Indianapolis Traction Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.Wymond J. Beckett, for appellant. F. Winter, Brill & Harvey, and W. H. Latta, for appellee.
This action was brought by appellant to recover damages for personal injuries which he alleges were received by him while alighting from one of appellee's street cars in the city of Indianapolis upon which he had been riding as a passenger.
The complaint was in one paragraph to which the appellee filed an answer of general denial and also an answer setting up the two-year statute of limitations. The appellant filed a reply in general denial to the second paragraph of answer, and upon the issues so formed the cause was submitted to a jury for trial. The jury returned a general verdict in favor of appellee, and appellant filed a motion for a new trial which was overruled and judgment entered for appellee. The only error assigned for reversal is the overruling of appellant's motion for a new trial.
The only question presented by this appeal is the alleged error of the trial court in giving to the jury instructions 1, 2, and 3 requested by appellee. The first instruction complained of is as follows: “In an action like the one you are trying, the burden is upon the plaintiff to establish by evidence to your satisfaction not only that the agents, servants, and employés of the defendant street car company were negligent in manner and form, as charged in his complaint, but before he can recover for any ailment or injury from which he is now suffering, or has suffered, he must show to your satisfaction, by a fair preponderance of all of the evidence in the case, that such ailment and suffering is the direct and proximate result of the negligence of the defendant, its agents, servants, and employés as charged in the complaint, and it is not sufficient to warrant you in returning a verdict in favor of the plaintiff, that he enshroud the source of such suffering and ailment if any he has, in doubt or mystery, but the evidence must be such as to create an honest conviction in your minds as to the truth of the proposition, sought to be established, and that such ailment or suffering is the direct or approximate result of the negligence of defendant's agents, servants, and employés, as charged in the complaint, and not from any other cause.” This instruction informs the jury that the burden was upon the plaintiff to establish by evidence to the satisfaction of the jury the material averments of his complaint.
[1][2] The law requires that the plaintiff must prove the material averments of his complaint by a fair preponderance of the evidence, and the claim of appellant is that this instruction requires a higher degree of proof than the law exacts. The form of the expression used in this instruction is not to be commended, and has been expressly condemned by the Supreme Court of Illinois. Mitchell v. Hindman, 150 Ill. 538, 37 N. E. 916. In the case just cited it appeared that an instruction which stated that plaintiff was “bound to prove to the satisfaction of the jury by a clear preponderance of the evidence,” etc., had been requested and refused by the trial court. It was held on appeal that the instruction was erroneous and that it was properly refused. The language used in the instruction under consideration is not identical with that condemned in the Illinois case to which we have referred, but it was sufficiently objectionable to have justified the trial court in refusing the instruction. An instruction may contain such an inaccurate statement of the law as would warrant the trial court in refusing to give it, and still the objection may not be so serious as to warrant a reversal of a judgment on that account. In this case the trial court could have very properly refused to give the instruction in question, and such a ruling would have been commendable, but, having given the instruction, this court is now required to determine whether the language employed, when considered in connection with the other instructions given, was such as would probably mislead the jury to the prejudice of appellant. This court has repeatedly decided that an instruction that in substance informs the jury that a party having the burden of proof as to a certain fact or issue must establish it to the satisfaction of the jury by a fair preponderance of the evidence is not reversible error, where the other instructions in the case clearly define what is meant by a preponderance of the evidence and distinctly advise them that a preponderance of the evidence will be sufficient to justify a finding in favor of the party having the burden. In such cases it is held that the words “to satisfaction of the jury” are equivalent to “find” or “believe.” Terre Haute, etc., Co. v. Payne, 45 Ind. App. 132, 89 N. E. 413;Baltimore, etc., R. Co. v. Walker, 41 Ind. App. 588, 84 N. E. 730;Sams Automatic Car Co. v. League, 25 Colo. 129, 54 Pac. 642:Callam v. Hanson, 86 Iowa, 420, 53 N. W. 282;Stewart v. Outhwaite, 141 Mo. 562, 44 S. W. 326.
In the third instruction given at the request of plaintiff the court told the jury that the issues were to be determined by a preponderance of the evidence and in the same instruction informd them what was meant by said term. In other instructions the jury was repeatedly told that if certain facts were proven by a preponderance of the evidence, they should find such facts by their verdict. While we do not approve of the form of expression used in this instruction to indicate the degree of proof required to establish a fact in favor of the party having the burden, still, in view of the other instructions given, we do not think that the jury could have been misled.
[3] The second instruction given at the request of appellee is as follows: “If you find from the evidence in this case that on the 25th day of March, 1905, the day the plaintiff claims to have been injured, that he, plaintiff, ate some canned fish, and as a result thereof became poisoned and had what is known as ptomaine poisoning, and that his bowels became affected and diseased as a result thereof, and he had colitis and other ailments as a consequence thereof, and his pain and suffering resulting from said condition are so intermingled with any pain and suffering caused from being thrown from a street car, as alleged in his complaint, if you find from the evidence that he was so thrown from said car, and you are unable, from the evidence, to separate the damages and pain and suffering caused by the ptomaine poisoning from the damages, pain and suffering caused from being so thrown from said car, then I instruct you that plaintiff could not recover for such damages and pain and suffering.” The effect of this instruction was to inform the jury that, if they found that the plaintiff was injured by reason of defendant's negligence, as charged in the complaint, and suffered pain by reason thereof, and if they further found that he was at the time suffering injury and pain as a result of ptomaine poisoning, then it would be incumbent upon the plaintiff to prove what part of the damages and suffering was due to the negligent injury and what part was due to the disease; and if, from the evidence, the jury was unable to determine the extent of the damages and suffering which were due to the injury complained of, as distinguished from such as were due to the disease, then there could be no recovery for any of such damages and suffering.
We do not think that this instruction correctly states the law. The application of such an instruction would relieve a defendant from the obligation to pay damages which were found by the jury to be the direct and proximate result of its negligence. Where a person is injured by the negligence of another the pain and suffering caused by such injury is a legitimate element of damages. By this instruction the jury is told that even though the plaintiff did suffer pain as a result of being thrown from said street car, this cannot be considered as an element of damage if he was at the same time suffering pain as a result of ptomaine poisoning and the pain resulting from the two causes were so...
To continue reading
Request your trial