Burk v. Chesapeake & Ohio Railway Co.

202 N.E.2d 387, 138 Ind. App. 634, 1964 Ind. App. LEXIS 264

• Court: Indiana Court of Appeals
• Decided: December 2, 1964
• Docket: No. 19,889
• Status: Published

Opinions

Carson, J.

The appellant, plaintiff below, brought this action against the appellee for the death of her husband whose pick-up truck was struck by a train of the appellee. The jury returned a verdict of $9,000.00 and also answered certain interrogatories. On motion of the appellee the trial court entered judgment for the appellee on the interrogatories and the answer thereto notwithstanding the general verdict.

The appellant assigned as error the sustaining of appellee’s motion for judgment on the jury’s answer to the interrogatories, and the order requiring the jury to answer certain interrogatories.

Appellee-railroad first contends that appellant did not bring to this court a complete record in failing to include in the transcript a photograph introduced in evidence as Exhibit No. 4. By Interrogatory No. 33 the jury was asked:

“Does the picture taken by the Deputy Sheriff and identified as Exhibit No. 4 accurately portray the view of the decedent would have had of that portion of the tracks and the surroundings of the crossing had he looked when he was 17 feet south of the south rail of the house tracks?”

To this interrogatory the jury answered, “Yes.” By this interrogatory and answer appellee seeks to show that when decedent was seventeen feet from the nearest track he had an unobstructed view of the approaching train.

In considering a motion for judgment on the interrogatories notwithstanding the general verdict, the court must consider only the pleadings, the general verdict, the interrogatories and answers thereto; New York Central R. R. Co. v. Thompson (1939), 215 Ind. 652, 662, 21 N. E. 2d 625; and may not consider any of the evidence introduced at the trial. Haddon School Twp., Sullivan County v. Willis (1936), 209 Ind. 356, 362, 199 N. E. 251.

The rule is well stated in Citizens, etc., Trust Co., Admr. v. Terre Haute, etc., Trac. Co. (1923), 79 Ind. App. 491, 497, 135 N. E. 802, where this court said:

“The evidence in the instant case is not in the record, and if it were, we could not look to it in determining the question as to whether the court erred in sustaining appellee’s motion for judgment on the answer to the interrogatories, as it is well settled that in passing- upon this question we can only look to the complaint, the verdict, and the facts as disclosed by the answer to the interrogatories.”

Interrogatory No. 33 required the trial court to consider an item of evidence and was, therefore, improper. This court cannot consider the evidence on this appeal, and appellant, therefore, did not fail to bring a proper record to us in failing to incorporate in the transcript the photograph referred to in the interrogatory.

In setting aside the general verdict and entering judgment on the interrogatories, the trial court stated its reasons therefor as follows:

“a. That the answers to the interrogatories submitted to the jury are inconsistent with the general verdict, that such answers and such general verdict are irreconcilable, and the answer to the interrogatories in this case control.

b. That the answers to said interrogatories found plaintiff’s decedent violated the provisions of Section 47-2114 B. I. S.: that such violation was negligence as a matter of law and a proximate cause of decedent’s death, as a matter of law.

c. That the answers to the interrogatories found plaintiff’s decedent either did not look or listen for defendant’s approaching engine and train, or if he did look or listen he did not see or hear what was there to be seen or heard, and that by reason thereof plaintiff’s decedent was contributorily negligent, and such negligence was a proximate cause of said decedent’s death, as a matter of law.

d. That the law as announced by the Supreme Court in the recent case of the New York Central Railroad Company v. John Glad, 179 N. E. 2d 571, decided January 29, 1962, is applicable to defendant’s motion for a judgment on the interrogatories notwithstanding the general verdict.”

The statute found by the trial court to have been violated by decedent, being Acts 1939, ch. 48, § 100, p. 289, § 47-2114, Burns 1952 Replacement, reads, in pertinent part, as follows:

“Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty [50] feet but not less than ten [10] feet from the nearest track of such railroad and shall not proceed until he can do so safely, when:”

* .1: * *

“ (c) A railroad train, as defined in this act, approaching within approximately one thousand five hundred [1,500] feet of a highway crossing emits a signal audible for such distance and such train, by reason of its speed or nearness to such crossing, is an immediate hazard.”

Of the 48 interrogatories submitted to and answered by the jury, the four interrogatories and their answers which are urged by appellee to support the ruling of the trial court are as follows:

“INTERROGATORY NO. 9

When the truck was 50 feet from the nearest track of defendant’s railroad, was defendant’s engine approaching, and in hazardous proximity to such crossing?

Answer: Yes”

“INTERROGATORY NO. 11

When the truck was 30 feet from the nearest track of defendant’s railroad, was defendant’s engine approaching, and in hazardous proximity to such crossing?

Answer: Yes”

“INTERROGATORY NO. 13

If defendant’s engine, approaching within approximately 1500 feet of the highway crossing, did emit a signal audible for such distance, was such engine, by reason of its speed or nearness to such crossing, an immediate hazard?

Answer: Yes”

Interrogatories Nos. 9, 11 and 13 were specifically objected to by appellant in the trial court. However, such objections were not urged in appellant’s brief and supported by argument. Under Rule 2-17 (d), (e) and (f) of the Supreme Court, 1962 Revision, such objections have been waived and we may not consider them. Rentschler v. Hall (1947), 117 Ind. App. 255, 69 N. E. 2d 619.

From a careful examination of the appellant’s brief it appears that appellant has cited authorities in support of the propositions raised in her assignment of errors. We are unable however, to bring the appellant’s argument and citation of authorities within the rule previously laid down by our Supreme Court and by this Court to the effect that the appellant must support her objections by cogent argument and citation of authorities. The appellant must show application of authorities cited to the argument and the questions presented on the appeal. The burden is upon the appellant to demonstrate reversible error. Wright v. State (1958), 237 Ind. 593, 147 N. E. 2d 551; Poore v. Poore (1955), 125 Ind. App. 392, 125 N. E. 2d 810; O’Neal v. Deveny (1963), 135 Ind. App. 446, 194 N. E. 2d 413.

It is our opinion that the appellant has failed to meet the above requirements and therefore it is unnecessary for us to discuss in detail any of the questions presented in the appellant’s brief.

For the reasons heretofore stated the judgment is affirmed.

' Cooper and Ryan, JJ., concur. Faulconef, C. J., dissents with opinion.