The Evansville & Terre Haute Railroad Company v. Marohn

• Decision Date: 11 May 1893
• Docket Number: 916
• Citation: 34 N.E. 27,6 Ind.App. 646
• Court: Indiana Appellate Court
• Parties: THE EVANSVILLE & TERRE HAUTE RAILROAD COMPANY v. MAROHN

34 N.E. 27

6 Ind.App. 646

THE EVANSVILLE & TERRE HAUTE RAILROAD COMPANY v. MAROHN

No. 916

Court of Appeals of Indiana

May 11, 1893

From the Daviess Circuit Court.

Judgment affirmed.

J. E Iglehart, E. Taylor, W. R. Gardiner and S. H. Taylor, for appellant.

W. A Cullop, C. B. Kessinger and L. A. Meyer, for appellee.

OPINION

LOTZ J.

On the 8th day of May, 1890, the appellee was traveling upon a highway in Knox county, Indiana, and, at a point where said highway crossed appellant's main track, he was struck by the locomotive engine attached to a passenger train, and himself, and his wagon and horses, were injured. He brought this action to recover damages for the injuries sustained.

His complaint is in three paragraphs. The gravamen of the first is that the train approached said crossing at an immoderate and dangerous rate of speed, and that appellant's employes in charge failed and omitted to ring the bell or sound the whistle, or to give any signal of its approach of any kind whatever. The second paragraph differs from the first only in that it charges a failure to stop the train at Purcell's station, in the immediate vicinity of said crossing. The third paragraph charges the same facts set out in the first and second, and in addition thereto charges that the appellant caused a locomotive engine and train of cars to be switched and to stand on a side track near said crossing, thereby obscuring and preventing a plain view of the main track, and of trains thereon approaching said crossing; that said locomotive so standing on said track blew off steam, thereby creating such a noise as to prevent the hearing of an approaching train, or the signals by it given; and also failed to station any person to give notice of an approaching train; and caused large quantities of old rails and rubbish to be burned, producing smoke around said crossing, so as to obscure sight and the approach of said train.

The cause was put at issue by an answer of general denial. There was a trial by jury, and a general verdict for appellee, assessing his damages in the sum of $ 1,500. The jury also, at the request of both appellant and appellee, returned with their general verdict answers to various interrogatories. The appellant moved for a judgment in its favor, upon the special findings of the jury, notwithstanding the general verdict. This motion was overruled.

There are several assignments of error, but the only one discussed by counsel for appellant is the overruling of the motion for a judgment, notwithstanding the general verdict. There is no bill of exceptions presenting the ruling of the court on this motion, but no bill is necessary for that purpose. Terre Haute, etc., R. R. Co. v. Clark, Admr., 73 Ind. 168.

Neither is the evidence in the record, but, in reviewing the ruling of the lower court for a judgment non obstante, this court can not look to the evidence; hence, it is unnecessary that the evidence be in the record. Pennsylvania Co. v. Smith, 98 Ind. 42; Cox v. Ratcliffe, 105 Ind. 374, 5 N.E. 5.

The question here presented must be determined upon the complaint, the interrogatories and the answers thereto. The general verdict covers all the issues in the case. Hereth v. Hereth, 100 Ind. 35. The main purpose that the interrogatories and answers serve is to test the correctness of the general verdict. It is well settled that when the special findings are inconsistent with the general verdict, so that both can not stand, the former controls the latter, and it is the duty of the court to give judgment accordingly. City of Indianapolis v. Cook, 99 Ind. 10; Fleetwood v. Dorsey, etc., Co., 95 Ind. 491; Hartman v. Flaherty, 80 Ind. 472; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440; Grand Rapids, etc., R. R. Co. v. Boyd, 65 Ind. 526.

But, in attempting to overthrow the general verdict by the special findings, there are certain well settled rules that must be borne in mind. Before the general verdict will yield to the special findings, they must so antagonize each other that by no reasonable hypothesis can they be reconciled. It is then and then only that the findings control. R. S. 1881, section 547; Indianapolis, etc., R. R. Co. v. Stout, Admr., 53 Ind. 143; Alexander v. North Western, etc., University, 57 Ind. 466.

If, however, there be any reasonable hypothesis by which they can be reconciled, the judgment must follow the general verdict. Cincinnati, etc., R. R. Co. v. Clifford, 113 Ind. 460, 15 N.E. 524; Grand Rapids, etc., R. R. Co. v. Ellison, 117 Ind. 234, 20 N.E. 135; Redelsheimer v. Miller, 107 Ind. 485, 8 N.E. 447.

And every reasonable presumption will be indulged in favor of the general verdict, and nothing will be presumed in support of the special findings. Rice v. Manford, 110 Ind. 596, 11 N.E. 283; McComas v. Haas, 107 Ind. 512, 8 N.E. 579; Sanders v. Weelburg, Exx., 107 Ind. 266, 7 N.E. 573; Redelsheimer v. Miller, supra; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88, 3 N.E. 627.

So, also, where the answers to interrogatories contradict each other the general verdict must prevail. Hereth v. Hereth, supra.

The right to a recovery in this case, if any there be, is based upon two facts, which must exist; 1, that the appellant was negligent, and 2 that appellee was free from any negligence contributing to the injury.

Appellant contends that all the facts stated in the special findings, when construed together, show that the appellee was not free from contributory negligence. The special findings seem to cover nearly all the material facts in the case, and from them it appears, that Purcell's station is about six miles south of the city of Vincennes; that the main track of appellant's railroad at that place ran in a north and south direction; that there was a side track on the east side, and parallel with the main track, which was used for switching purposes, and for trains to pass each other. East of said station was a highway, the line of which extended from the east towards the west, until it came to within sixty feet of the railroad track, and then turned south and continued parallel with said track for the distance of three hundred feet; it then turned to the west and crossed the main track of the railroad at the point where the plaintiff was injured. It was about the hour when the south-bound passenger train was due at said station. A south-bound freight train had been side tracked to allow the passenger train to pass, and was standing upon the side track, with the locomotive engine headed to the south. It was two hundred and fifteen feet from the highway crossing to the locomotive attached to the freight train. The passenger train approached said crossing at the rate of thirty miles per hour. The signal whistle for the approach to the station was given, but no whistle was given, and no bell rung, nor any signal of any kind given for the crossing.

The appellee was a teamster, and lived in Vincennes, and was familiar with this crossing. On the day of the accident he was traveling upon the highway in a wagon, to which were attached two gentle horses. He was traveling at the rate of two miles per hour. As he approached from the east, and turned southward, he saw the freight train standing on the side track. The freight train obstructed the view in the direction of the station and of the main track. Appellee continued southward with said highway, and turned to the west. When from forty to seventy-five feet east of the crossing he brought his team to a stop and looked and listened for an approaching train, and continued to look and listen in each direction until it was too late to avoid a collision. Appellee was in the...