Southern Indiana Railway Company v. Fine
| Decision Date | 09 December 1904 |
| Docket Number | 20,434 |
| Parties | Southern Indiana Railway Company v. Fine |
| Court | Indiana Supreme Court |
From Lawrence Circuit Court; James B. Wilson, Judge.
Action by Andrew J. Fine against the Southern Indiana Railway Company for damages for personal injuries. From a judgment entered on a verdict for $ 1,250, the defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901.
Affirmed.
T. J Brooks, W. F. Brooks and F. M. Trissal, for appellant.
J. R East, R. H. East and McHenry Owen, for appellee.
Appellee filed his complaint in four paragraphs to recover against appellant for negligence. The first three of said paragraphs were held sufficient on demurrer. A demurrer was sustained to the fourth paragraph. Appellant closed the issues by a general denial. There was a verdict in appellee's favor, and in connection therewith the jury returned answers to fifty-one interrogatories. Appellant filed a motion for a new trial, which was overruled, and judgment was rendered for appellee.
The errors assigned draw in question the overruling of the demurrer to the first three paragraphs of the complaint, and the overruling of the motion for a new trial.
The case as presented to us is somewhat peculiar, in that the interrogatories which were submitted were so framed as to be calculated to bring out an unusually full disclosure of the findings of the jury on the evidence, and the jury returned such answers that on most, if not all, of the matters on which there would have to be a finding in appellee's favor to warrant a recovery by him, we are sufficiently advised as to what the jury's conclusion was on the questions of fact. It is generally a difficult undertaking to make a narrative statement of the effect of a jury's answers to a long series of interrogatories, and this case is no exception to the rule. Nevertheless, since the findings, or their substance, must be stated if the basis of our rulings on most points is to be made clear, we shall undertake to reduce the matter to narrative. After grouping the findings, so far as possible, according to what seems to be their natural sequence, it may be said that in substance they are as follows: On the 5th day of December, 1899, appellant was engaged in unloading dirt from a train of flat-cars, by means of a plow or shovel, which was pulled eastward by a wire cable, which was stretched lengthwise along said cars and attached to a locomotive. One Charles H. Deer was the conductor, and in full charge of said train. On said day appellee was in the employ of appellant on said train as a cable man, and he had been so working during the three months immediately preceding said date. It was the duty of appellee, while in said employment, to conform to the orders of said conductor. At the time in question, four cable men, including appellee, were at the east end of said train, engaged in uncoupling the locomotive from the train and preparing to start the plow. On that portion of the train which was nearest the locomotive there was an apron or end board, which it was necessary to let down before commencing to plow. It was the duty of appellee under his employment, as said apron was up, to lower it, preparatory to unloading the dirt. In the straightening of said cable by the locomotive it was a frequent occurrence that the cable would fly to one side, if the apron was up, and it was dangerous, because of such tendency, to stand at said end board and near said cable in such circumstances. Before signaling the engineer to start the locomotive, it was the duty of the conductor to get information that all was ready from the cable men or the brakemen at the head of the train. At the time referred to appellee had gone to said apron for the purpose of lowering it. Although the conductor did not receive any signal that all was ready, and although he knew that appellee was in a dangerous place, and at the place where he was hurt, as hereinafter stated, yet he gave the engineer a signal to start, with the result that the latter suddenly started the locomotive, thereby causing the cable instantly to strike and severely injure appellee, before he had time to escape. At that time appellee was in the line of his duty, standing in the usual place for lowering said apron, and was engaged in so doing in conformity to the orders of the conductor. It is further found that appellee had no warning or notice that the locomotive was about to start, and that he did not know that his location was dangerous, because he had received no signal. The jury answered in the affirmative the twenty-second interrogatory propounded to them, which was as follows: "Was not the plaintiff at the time of his injury using and exercising ordinary care and diligence for his own safety?"
The second paragraph of the complaint was evidently drafted on the theory of stating a cause of action under the first part of the fourth subdivision of section one of the employers' liability act (Acts 1893, p. 294, § 7083 Burns 1901). Indianapolis Union R. Co. v. Houlihan (1901), 157 Ind. 494, 60 N.E. 943, 54 L.R.A. 787; Thacker v. Chicago, etc., R. Co. (1902), 159 Ind. 82, 64 N.E. 605, 59 L.R.A. 792. It is objected that this paragraph is insufficient, for the reason that it is not averred that a duty of warning appellee was owing to him, or that he had a right to expect it. It is alleged that Deer had full charge and control of the train, and also that he knew that appellee was standing near the car, and that to give such signal, or order, and so cause the locomotive to start, would instantly cause appellee's working place to become dangerous and unsafe to him. It also sufficiently appears that appellee was in a place where his duty under his employment called him. It is in these circumstances that it is alleged that said conductor "carelessly and negligently, without any notice or warning to this plaintiff whatever, suddenly signaled, ordered, and caused the engineer of said train suddenly to start said locomotive eastward." The failure to give notice is not charged as a substantive ground of negligence. The ground of negligence was the giving of the signal, but we should be prepared to hold, if the averment were that the conductor negligently started the locomotive without giving notice to appellee, that, considering that the conductor was in full charge of the train, and knew that appellee's position would be rendered perilous by starting the locomotive without notice, a duty upon the part of the conductor to give notice was sufficiently disclosed by the facts alleged. A bare allegation of a legal duty amounts to nothing. Facts should be alleged which discloses the existence of the duty, and in this respect the paragraph before us appears to be sufficient. See Pittsburgh, etc., R. Co. v. Lightheiser (1904), ante, 247. We need not consider the sufficiency of the other paragraphs of complaint, for it sufficiently appears from the answers to interrogatories that the jury found for appellee on the second paragraph.
It is disclosed by a bill of exceptions that in making the closing argument one of the attorneys for appellee said to the jury: --at this point the argument was interrupted by one of appellant's attorneys, who objected to said statements, and moved the court to withdraw the submission of the cause from the jury on account of the misconduct of counsel, and he further objected to proceeding with the cause. It is disclosed that the court overruled the objections and motions, and that it stated that it would instruct the jury to answer the interrogatories according to the evidence, to each of which rulings, as the bill states, appellant excepted. Upon the conclusion of the incident, appellee's counsel stated, in proceeding with his argument, "that the plaintiff did not desire a verdict of any kind that was not based upon the evidence." Among the instructions afterwards given is one which directed the jury to "answer each of the interrogatories submitted as the evidence warrants, without reference to your general verdict."
Considering the purpose that answers to interrogatories propounded to the jury are designed to subserve, it is proper in considering them in argument to discuss not only the evidence in its application to the interrogatories, but even to go further, and impress upon the minds of the jurors that, as the verdict and the answers will be considered together, great care should be exercised in the framing of their answers, to the end that the jurors shall fully apprehend the import of each interrogatory, and that their answers shall be in accord with the evidence. But we have no hesitation in stating that the suggestion made by counsel for appellee in arguing the cause to the jury was improper. The objection to the statement in question lay in its strong, if not necessary, implication that, having reached a general verdict in favor of the plaintiff, the jurors should not approach the task of answering interrogatories with ingenuous minds, but that they should do so with a predominant purpose of making such answers as would not be out of accord with a general verdict in favor of the plaintiff.
If in the argument of a cause counsel go beyond...
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