Tribune-Star Pub. Co. v. Fortwendle
| Decision Date | 05 November 1953 |
| Docket Number | TRIBUNE-STAR,No. 18394,18394 |
| Citation | 115 N.E.2d 215,124 Ind.App. 618 |
| Parties | PUB. CO., Inc. v. FORTWENDLE. |
| Court | Indiana Appellate Court |
Rosenfeld & Wolfe, Terre Haute, for appellant.
Crawford & Crawford, Fred H. Thoms, Terre Haute, for appellee.
This is an action by appellee, Oscar C. Fortwendle, against appellant, Tribune-Star Publishing Company, Inc., to recover damages for personal injuries. Judgment was for appellee.
The errors assigned are as follows:
(1) The court erred in overruling appellant's motion for judgment on interrogatories, notwithstanding the general verdict.
(2) Overruling of appellant's motion for new trial, the grounds therein assigned being that the verdict of the jury was (a) not sustained by sufficient evidence and (b) was contrary to law, and (c) the overruling of appellant's motion for a directed verdict against appellee at the close of all the evidence.
(3) The giving and refusing of certain instructions.
(4) The admission and rejection of certain evidence.
Appellee alleged in his amended complaint that he was an employee of Sussman Iron and Metal Company, which dealt in salvage materials in Terre Haute, Indiana, and periodically collected scrap paper from appellant; that appellant maintained a freight elevator, which ran from the basement of its premises to the surface of a public alley. That on May 14, 1948, appellee was injured while using said elevator to remove such scrap paper from the basement of appellant's premises. That after unloading the second load, appellee proceeded to step from the elevator platform to the pavement of the alley when the elevator suddenly fell, causing appellee the injuries complained of. Appellee also alleged that said elevator, during all of said period, was 'under the sole and exclusive control and management of the defendant.'
As heretofore stated, appellant's first assigned error was the overruling of its motion for judgment on answers to interrogatories notwithstanding the general verdict. Appellant's motion was based on the jury's answer to interrogatory number 14, which read as follows:
'Did defendant have knowledge or notice of the defect or dangerous condition in the freight elevator that caused it to fall on May 14, 1948.'
The answer of the jury to this question was 'No.'
The law is now well settled that, under Acts 1881, ch. 38, § 390, § 2-2023, Burns' 1946 Replacement, when an answer to an interrogatory excludes every conclusion authorizing recovery by the party who has the general verdict, judgment should be entered on such answer. And this is so, even if other answers given by the jury on other points favor the party relying on the general verdict.
However, it is also true that, in determining whether there is a conflict between the general verdict and the answers to interrogatories, every reasonable presumption and inference must be indulged in favor of the general verdict, and nothing will be presumed or inferred in favor of the answers to interrogatories as against the general verdict. Neuwelt v. Roush, 1949, 119 Ind.App. 481, 85 N.E.2d 506; Tucker Freight Lines v. Gross, 1941, 109 Ind.App. 454, 33 N.E.2d 353; Gary Railways v. Dillon, 1950, 228 Ind. 558, 92 N.E.2d 720.
In the case before us, appellant was not only chargeable with defects in the elevator, of which he had actual 'knowledge or notice,' but, under the law, he was chargeable with that knowledge or notice of such defects, which, in the exercise of reasonable care, could have been discovered. This has been described as implied or constructive knowledge or notice. Such 'knowledge or notice' is a creature of the law, considered to exist in the absence of knowledge or notice. 65 C.J.S., Negligence, § 5 c, page 352. Interrogatory numbered 14 was not so inclusive as to exclude the possibility of such constructive notice. Appellant's motion for a judgment on the...
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...sure, will not recur in the re-trial. Flowers v. State, 1956, 236 Ind. 151, 170, 139 N.E.2d 185; Tribune-Star Publishing Co., Inc. v. Fortwendle, 1954, 124 Ind.App. 617, 115 N.E.2d 215, 116 N.E.2d Reviewing the pertinent part of said section of our statute, we find it provides, in part, the......
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Richmond Gas Corp. v. Reeves, 671A114
...been a complete lack of evidence introduced at trial. Lamb v. York (1969), 252 Ind. 252, 247 N.E.2d 197; Tribune-Star Publ. Co. v. Fortwendle (1953), 124 Ind.App. 618, 115 N.E.2d 215, 116 N.E.2d 548. However, if there is any evidence from which reasonable inferences can be drawn tending to ......
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Ewell v. King
...In view of our conclusion it is not necessary to discuss other alleged specifications of error. Tribune-Star Publ. Co., Inc. v. Fortwendle (1954), 124 Ind.App. 618, 115 N.E.2d 215, rehearing denied 116 N.E.2d 548; Flowers v. State (1956), 236 Ind. 151, 139 N.E.2d Judgment reversed and this ......
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