The Louisville, Evansville and St. Louis Consolidated Railroad Company v. Summers

• Decision Date: 09 April 1892
• Docket Number: 15,568
• Citation: 30 N.E. 873,131 Ind. 241
• Parties: The Louisville, Evansville and St. Louis Consolidated Railroad Company v. Summers, Administrator
• Court: Indiana Supreme Court

30 N.E. 873

131 Ind. 241

The Louisville, Evansville and St. Louis Consolidated Railroad Company v. Summers, Administrator

No. 15,568

Supreme Court of Indiana

April 9, 1892

From the Harrison Circuit Court.

Judgment affirmed.

N. R Peckinpaugh, J. H. Weathers and H. C. Hays, for appellant.

R. J Tracewell, M. W. Funk and C. L. Jewett, for appellee.

OPINION

McBride, J.

The appellee, as administrator of the estate of David Underwood deceased, brought this action to recover damages for the death of his intestate, who was a track-walker and watchman, employed by the original defendant, the Louisville, Evansville and St. Louis Railroad Company, and who was killed while in the discharge of his duty.

Four questions are discussed:

1. The sufficiency of the amended complaint.

2. Overruling appellant's motion for a judgment non obstante.

3. Overruling appellant's motion for a new trial.

4. The substitution of the appellant as defendant, by order of the court, after the return of the verdict.

Counsel, in their argument, only question the sufficiency of the complaint in one particular. They insist that it does not show that the decedent was free from contributory negligence. In their discussion of this question they have undoubtedly had in mind certain facts disclosed by the evidence, but which do not appear in the averments of the complaint.

The complaint contains the general averment that the decedent was "without fault or negligence."

This is sufficient, unless facts specially pleaded clearly show that he was guilty of contributory negligence. Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196, 15 N.E. 234; Pennsylvania Co. v. McCormack, post, p. 250. No fact specially pleaded tends in any degree to show negligence on the part of the decedent.

Did the court err in overruling the appellant's motion for a judgment in its favor on the special findings of the jury, notwithstanding the general verdict?

Such a motion can only be sustained where there is irreconcilable conflict between them. If the special findings can, upon any reasonable hypothesis, be reconciled with the general verdict, the latter will control. See Shoner v. Pennsylvania Co., 130 Ind. 170, 28 N.E. 616, where the authorities are cited. This is the rule where the special findings and general verdict can be reconciled with each other under any supposable state of facts provable under the issues, without reference to the evidence actually adduced on the trial. The court is bound to make every reasonable presumption in favor of the general verdict which, of necessity, involves a finding upon every material question in issue. The court can not presume anything in aid of the special findings, but is limited, so far as they are concerned, to the specific facts actually found.

It is entirely unnecessary to quote the special findings, or to consider them in detail. Measured by the foregoing rule, they fall far short of that which would justify disregarding the general verdict.

The circuit court did not err in overruling the motion.

The questions which the appellant seeks to present by the motion for a new trial can not be considered. The case was tried at the May term, 1889, of the Harrison Circuit Court. The verdict was returned June 7th, 1889. The court adjourned for the term June 8th, 1889. The next term of that court convened September 2d, 1889. The motion for a new trial was not filed until October 4th, 1889. The appellee at the time objected to the court permitting it to be filed, because too late, and...