The Cleveland, Columbus, Cincinnati And Indianapolis Railway Company v. Wynant

Decision Date07 June 1893
Docket Number15,231
Citation34 N.E. 569,134 Ind. 681
PartiesThe Cleveland, Columbus, Cincinnati and Indianapolis Railway Company v. Wynant
CourtIndiana Supreme Court

From the Madison Circuit Court.

The judgment is affirmed.

J. T Dye, W. S. Robinson, J. W. Lovett, W. H. Dye, B. K. Elliott and W. F. Elliott, for appellant.

H. D Thompson and C. L. Henry, for appellee.


McCabe, J.

Appellee sued the appellant for a personal injury alleged to have been received by her through the negligence of appellant. Issue trial by jury, verdict for plaintiff for $ 3,570, upon which appellee had judgment over a motion for a new trial. The errors assigned are:

First. That the court erred in overruling a demurrer to the complaint.

Second. In overruling the motion for a new trial.

The complaint was in two paragraphs, and are the same they were when the case was here on two other appeals. Both paragraphs were held good on demurrer on the first appeal. Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Cleveland, etc., R. W. Co. v. Wynant, 114 Ind. 525, 17 N.E. 118.

It is settled law that a ruling in a case on a former appeal in this court, is the law of that case on the point ruled throughout all its subsequent stages, until its final determination, and a complaint once held good on one appeal can not thereafter, in another appeal of the same case, be questioned. Mason v. Burk, 120 Ind. 404, 22 N.E. 119; Board, etc., v. Jameson, 86 Ind. 154; Gerber v. Friday, 87 Ind. 366; Jones v. Castor, 96 Ind. 307.

Therefore, the first assignment of error is not well taken.

Among the reasons for a new trial was that the verdict was not sustained by sufficient evidence. As will be seen, by reference to Cleveland, etc., R. W. Co. v. Wynant, supra, the plaintiff was injured by the team of horses, which were drawing the vehicle in which she and her husband were riding, becoming frightened and running away at a place where the highway on which they were traveling crossed the railroad track of the appellant, resulting in the breaking of appellee's arm. The wrong with which the appellant was charged was negligently leaving one of its box cars standing on its track, upon and partially across said highway, which extended twenty-four feet upon said highway, and to the edge of that part then used by the public as their route of travel, which caused the said team of horses and each of them to become frightened and wholly unmanageable and to run away, overturning said wagon, thereby breaking her arm, without fault or negligence on her part.

The appellant insists that the evidence is not sufficient to support the verdict, in that it fails to establish that the box car caused the fright of the horses, and caused them to become unmanageable and run away. On the other hand, it is contended that this court can not reverse the judgment on the evidence alone, if it tends to support the verdict.

It is claimed by appellee's counsel that if the evidence tends to support the verdict, this court can not reverse the judgment on the evidence. This is not strictly correct. That expression has been used in a long line of cases by this court, but evidently not intending that the language should be construed in its literal signification. Lane v. Brown, 22 Ind. 239; Shank v. State, 25 Ind. 207; Atkisson v. Martin, 39 Ind. 242; Ft. Wayne, etc., R. R. Co. v. Grove, 47 Ind. 133; Wingate v. Neidlinger, 50 Ind. 520; Simpson v. Payne, Assignee, 58 Ind. 431; Durrah v. Stillwell, 59 Ind. 139; Applegate v. Moffitt, Admr., 60 Ind. 104; Evansville, etc., R. R. Co. v. Snapp, 61 Ind. 303; Ft. Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73; Martin v. Cauble, 72 Ind. 67; Evansville, etc., R. R. Co. v. Tipton, 101 Ind. 197; Crocker v. Hadley, 102 Ind. 416; Secor v. Skiles, 106 Ind. 98, 5 N.E. 897; Wabash R. W. Co. v. Savage, 110 Ind. 156, 9 N.E. 85; Cowger v. Land, 112 Ind. 263, 12 N.E. 96; Continental Life Ins. Co. v. Young, 113 Ind. 159, 15 N.E. 220; Isler v. Bland, 117 Ind. 457, 20 N.E. 303.

It seems quite unreasonable to say that if the evidence does nothing more than tend to support the verdict, this court can not disturb it. Evidence is always admissible that tends to support or prove the issue on the part of the party offering it, however slight that tendency may be, and it is never required as a condition to the introduction of offered evidence that it must be sufficient to establish the issue for the party offering it. If its tendency is in that direction it is competent. There may be several facts essential to establish or prove the issue on behalf of the plaintiff in a given case, and there may have been evidence sufficient to prove one of them only, and yet, on such evidence, a verdict could not stand on appeal in this court, though such evidence tends to support it; while it tends to support the verdict, it is not sufficient, because it does not prove enough, even though wholly uncontradicted.

In Martin v. Cauble, supra, the expression is: "This court will not disturb the finding of the lower court on a disputed question of fact, if there is evidence in the record on which the finding can stand."

In Butterfield v. Trittipo, 67 Ind. 338 (342), it is said: "While this court may not properly weigh evidence, nor attempt to determine its preponderance either for or against the finding below, it is still the duty of this court, as we understand our duty, to carefully examine the evidence, when the point is made, with a view of ascertaining whether or not there has been a failure of evidence on any material question. When the record discloses such a failure of evidence, it is as much the duty of this court to reverse the judgment below, on that ground, as for any other error."

In Swales, Trustee, etc., v. Southard, 64 Ind. 557, it is said: "There was legal evidence, introduced on the trial, tending, and sufficient, to sustain the verdict of the jury."

In Grant v. Westfall, 57 Ind. 121 (127), it is said: "The only question * * is whether or not the verdict * * is sustained by sufficient legal evidence. We think it is."

In Watt, Guar., v. De Haven, 55 Ind. 128 (130), it is said: "We think that the evidence * * amply sufficient to sustain the finding of the court below; but if we thought otherwise, we would not * * disturb the finding on the mere weight of the evidence."

And, in Madison, etc., R. R. Co. v. Taffe, 37 Ind. 361 (369), it is said: "When there is legal evidence that conduces to prove every material fact in the case, we must," etc.

It was never intended by the expression that "the verdict on appeal can not be disturbed in this court when the evidence tends to support it," to hold that less than sufficient legal evidence to establish the issue or the truth of the verdict or finding, would suffice, excluding from consideration all evidence conflicting therewith. Where the sufficiency of the evidence to support a verdict or finding is brought in question in this court on appeal, the question presented is very much like, and very nearly the same as, that presented by a demurrer to the evidence in the trial court.

In Willcuts v. North Western Life Ins. Co., 81 Ind. 300 (303), this court said:

"First. A demurrer to the evidence admits all facts of which there is any evidence, and all inferences which can be logically and reasonably drawn from the evidence.

"Second. All reasonable and natural inferences which may be drawn from the evidence are admitted, but forced and unnatural ones are not. * * The court will also, on the argument of the demurrer, make every inference of fact in favor of the party which the jury might, with the least degree of propriety, have inferred; but they ought not to make forced inferences.

"Third. In considering the evidence demurred to, the courts will not weigh it to determine whether a fact, of which there is any evidence, has or has not been proved, nor will they consider such evidence as is favorable to the demurring party, if there be any opposing evidence. * * So, if the evidence conflict, the party demurring must admit that of his adversary to be true so far as it conflicts with his own."

In Stockwell v. State, ex rel., 101 Ind. 1 (5), it is said: "That upon such demurrer the court will infer from the evidence every conclusion that the jury could reasonably have inferred from it; that all the facts of which there is any evidence are admitted, and all conclusions which can fairly and logically be deduced from those facts."

The only difference in the two cases is, on a demurrer to the evidence the demurring party, by his demurrer, admits the evidence and logical inferences deducible therefrom to be true, in favor of the opposite party; while on appeal the appellant does not admit the evidence and logical inferences therefrom to be true, but this court considers them to be true.

So, too, on an appeal here, the evidence must more than merely tend to support the verdict; it must be such that if every fact proved were admitted to be true, and every fact which could be logically and reasonably deduced therefrom were also admitted to be true, and that these facts embraced every fact essential to the existence and truth of the verdict, then, and not till then, is the evidence sufficient to support the verdict; no matter how great the contradictions to that evidence, if it comes up to the requirement above specified, it is sufficient to support the verdict in this court on appeal; if it does not, it is not sufficient.

It is very earnestly insisted that the evidence is not sufficient in that it fails to show that the appellant placed the box car on its track so as to extend into the highway. It is insisted that it might have been the work of intermeddlers. But the fact was proven beyond dispute that the car was...

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8 cases
  • Cleveland, C., C.&I. Ry. Co. v. Wynant
    • United States
    • Indiana Supreme Court
    • June 7, 1893
    ... ... Action by Harriet Wynant against the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company for personal ... ...
  • Studabaker v. Faylor
    • United States
    • Indiana Appellate Court
    • April 25, 1912
    ... ... in the later trial (Cleveland, etc., R. Co. v ... Wynant [1893], 134 Ind ... ...
  • Myers v. Sparks
    • United States
    • Indiana Appellate Court
    • November 19, 1926
    ... ... (1915), 183 Ind. 208, 108 N.E. 577; Cleveland, etc., R ... Co. v. Wynant (1893), 134 Ind ... ...
  • Southern Indiana Gas & Elec. Co. v. Winstead
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    • March 25, 1931 order to sustain a recovery for damages in such a case, it is necessary to prove both of the negligent acts, Cleveland, etc. R. Co. v. Wynant (1893) 134 Ind. 681, 34 N. E. 569;Terre Haute, etc., R. Co. v. McCorkle (1895) 140 Ind. 613, 40 N. E. 62, 64;Tecumseh, etc., Mining Co. v. Buck (1......
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