Vandalia R. Co. v. Fry

• Decision Date: 25 April 1919
• Docket Number: No. 9755.,9755.
• Citation: 70 Ind.App. 85,123 N.E. 124
• Parties: VANDALIA R. CO. v. FRY.
• Court: Indiana Appellate Court

70 Ind.App. 85

123 N.E. 124

VANDALIA R. CO.

v.FRY.

No. 9755.

Appellate Court of Indiana, Division No. 1.

April 25, 1919.

Appeal from Circuit Court, Greene County; Theo. E. Slinker, Judge.

Action by Lewis M. Fry against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Samuel O. Pickens, Charles W. Moores, R. F. Davidson, and Owen Pickens, all of Indianapolis, D. P. Williams, of Pittsburgh, Pa., and W. V. Moffett, of Bloomfield, for appellant.

Jesse F. Weisman, of Linton, and Davis, Bogart, Royse & Moore, of Terre Haute, for appellee.

BATMAN, P. J.

This is an action by appellee against appellant to recover damages for personal injuries alleged to have been received by reason of the negligence of a fellow servant while in the employ of appellant. The complaint is in a single paragraph, and alleges, among other things, that on April 15, 1914, appellant was a corporation engaged in the business of trade and commerce within the state of Indiana, and was employing in its said business at said time five or more persons; that on said date appellee was injured while in the employ of appellant in its said business by the negligence of one William Brashear, who was also an employé of appellant and a fellow servant of appellee at said time; that at the time appellee received his alleged injuries he and the said Brashear were engaged in placing a drawbar in one of appellant's cars; that in performing said work it was customary and necessary for certain bolts, known as carrying arm bolts, to be driven through certain timbers on the end of the car in such manner as to hold the chain, used in moving or swinging said drawbar into its proper place, and to prevent said chain from slipping or rolling over said bolts; that on the occasion in question the said Brashear drove said bolts through said timbers on the end of said car for such purpose, and then placed the chain over said bolts and fastened the same around said drawbar while appellee raised and held one end of the same; that appellee then undertook to swing or push said drawbar around and into its proper place, when it fell and injured his foot, by reason of the carelessness and negligence of said Brashear in failing and refusing to drive said bolts through said timbers in such manner as to prevent said chain from slipping over the same. Issues were duly joined on the complaint, after which the cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial which was overruled, and has assigned this action of the court as the sole error on which it relies for reversal.

[1] Appellant complains of the action of the court refusing to give certain instructions requested by it. Instruction No. 1 so requested, if given, would have directed the jury to return a verdict in favor of appellant. As there is some evidence to sustain every element essential to appellee's right of recovery, it would have been error to give said instruction. Vandalia R. Co. v. Parker (1915) 61 Ind. App. 146, 111 N. E. 637. As to the remaining instructions requested by appellant, we find that in so far as they state the law correctly, they are substantially covered by instructions given by the court on its own motion. Therefore the court did not err in refusing to give the same. Chicago, etc., R. Co. v. Mitchell (1915) 184 Ind. 383, 110 N. E. 215.

[2] Appellant contends that the court erred in giving instruction No. 5 on its own motion. It bases this contention on the fact that said instruction omits to inform the jury as to certain facts bearing on appellee's contributory negligence. This contention is not well taken as the jury was fully instructed in that regard by other instructions given. Under these circumstances there was no error in giving said instruction. Home Telephone Co. v. Weir (1913) 53 Ind. App. 466, 101 N. E. 1020.

[3][4] Appellant predicates error on the action of the court in giving instructions Nos. 6 and 9 on its own motion. It claims that each of these instructions is erroneous, because they placed on appellant the burden of proving that appellee's negligence was the proximate cause of his injury, while the rule is that there can be no recovery in an action based on negligence, if the negligence of the complaining party contributed in any way thereto. It is well settled that, in order for the negligence of an injured party to defeat his right of recovery, such negligence must be a proximate, and not a remote, cause of the injury. It is not necessary that it shall have been the sole cause, but it is sufficient if it enters into and forms part of the efficient cause thereof. 20 R. C. L. 136; 29 Cyc. 526; Indiana Stone Co. v. Stewart (1893) 7 Ind. App. 563, 34 N. E. 1019;Indianapolis, etc., Co. v. Kidd (1906) 167 Ind. 402, 79 N. E. 347, 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 942. In order to determine whether the jury could have been misled by either of said instructions with reference to the effect of any negligence of appellee, which may have been only a concurring proximate cause of the injury, we must consider the instructions as a whole, and not in detached portions. Cullman v. Terre Haute, etc., Co. (1915) 60 Ind. App. 187, 109 N. E. 52. We observe that the jury was informed by another instruction, given by the court on its own motion, that contributory negligence on the part of appellee, which caused, or partly caused, his injuries, was a complete defense to the action. In view of this fact, it is apparent that the jury could not have been misled by the language used in either of said instructions, and hence there was no reversible error in giving the same.

[5] Appellant finally contends that the verdict is not sustained by sufficient evidence and is contrary to law. It urges, among other things, that the evidence fails to show that it was guilty of the acts, or either...