Evansville & Terre Haute Railroad v. Hoffman

118 N.E. 151, 67 Ind. App. 571, 1917 Ind. App. LEXIS 255

• Court: Indiana Court of Appeals
• Decided: December 20, 1917
• Docket: No. 9,466
• Status: Published

Opinion

Batman, P. J.

Appellee brought this action.in the court below to recover damages for personal injuries, which he alleged he received through the negligence of appellant in the operation of a switch engine and certain empty freight cars on one of its sidetracks in the city of Vincennes, Indiana, thereby causing a collision with a street car in which he was a passenger. Issues were formed, trial had, and judgment rendered-for appellee. On appeal the judgment was reversed because of errors in instructions. Evansville, etc., R. Co. v. Hoffman (1914), 56 Ind. App. 530, 105 N. E. 788. A second trial of the cause was hqd in which a verdict was returned in favor of appellee, and judgment rendered accordingly. Appellant filed its motion for a new trial, which was overruled, and has assigned such ruling of the court as the error on which it relies for reversal. Airiong the reasons on which such motion for a new trial is based is the action of the court in giving instructions Nos. 5, 8, 9,10,11, and 12 on its own motion, which we will consider in the order named.

1. 2. 3. Appellant contends that the giving of said instructions Nos. 5 and 8 was error, for the reason that they each hypothesize the finding of negligence, proximate cause, and consequent • injury and damages, and thereon direct the jury to return a verdict for appellee, but fail to hypothesize freedom from contributory negligence on appellee’s part. We cannot concur in. this contention. The court, by the instructions in question, was dealing alone with the complaint, and the right of appellee to recover on the proof of certain facts alleged therein. By other instructions the court informed the jury that appellee could not recover, unless at the time of the collision and injury he was in the exercise of ordinary care and diligence to avoid injury to himself. The instructions in question cannot be held to be erroneous, because they do not apply to all the separate issues involved in the case, where such issues were covered by other instructions given by the court. Newcastle Bridge Co. v. Doty (1906), 168 Ind. 259, 79 N. E. 485; Indiana Union Traction Co. v. Keiter (1910), 175 Ind. 268, 92 N. E. 982; Harmon v. Foran (1911),48 Ind. App. 262, 94 N. E. 1050, 95 N. E. 597; Home Tel. Co. v. Weir (1913), 53 Ind. App. 466, 101 N. E. 1020. Moreover, there was ,no evidence on the trial of said cause that tended to prove that appellee’s negligence contributed to his alleged injuries. Therefore,- the omission from such instruction of any reference to such negligence on the part of appellee, if error, was harmless. Knoefel v. Atkins (1907), 40 Ind. App. 428, 81 N. E. 600; Neely v. Louisville, etc., Traction Co. (1913), 53 Ind. App. 659, 102 N. E. 455; Indianapolis Union R. Co. v. Waddington (1907), 169 Ind. 448, 82 N. E. 1030.

4. 5. 4. Appellant also contends that the court erred in giving instruction No. 9, the objectionable portion being as follows: “The persons who had control of the street car, which collided with the defendant’s car on the crossing, were in duty bound to exercise ordinary care and diligence in running said street car upon and over said crossing, in sucb manner as to avoid causing any injury to passengers on said street car. ’ ’ It insists that this statement renders such instruction erroneous, inasmuch as the street car company, whose passenger appellee was at the time of the collision, owed him the highest degree of care, and that it was harmful because the duties owed by the train crew depended somewhat upon the rights and duties of the street car crew, as the former had a right to believe, up to the moment of perceiving the contrary, that the latter would perform its duties, without negligence, and had a right to rely and act on such belief. If it be conceded that such street car company owed appellee a higher degree of care than was stated in such instruction, still it would not follow that its giving was harmful. On the trial of the cause the jury was required to determine whether appellant’s train crew was guilty of any negligence in the operation of its said engine and ears which proximately contributed to appellee’s alleged injuries. Under the law appellant owed appellee, and the company in whose street car he was a passenger at the time of the alleged collision, the same duty as it owed pedestrians and the drivers of private vehicles, viz., ordinary care and diligence not to inflict injury on them in the operation of its engine and cars. Vincennes Traction Co. v. Curry (1915), 59 Ind. App. 683, 109 N. E. 62; New York, etc., R. Co. v. New Jersey, etc., R. Co. (1897), 60 N. J. Law 52, 37 Atl. 627, 38 L. R. A. 516; Klinger v. Union Traction Co. (1904), 92 App. Div. 100, 87 N. Y. Supp. 864. The street car company owed the railroad company only ordinary care to avoid the collision in question, and that is all the care the railroad company had a right to rely on in the operation of its engine and cars. It could not rely on the street car company discharging a higher degree of care towards its passengers, and thus relieve itself from liability to such passengers, for a failure to exercise ordinary care toward them. Dean, Admx., v. Cleveland, etc., R. Co. (1917), 65 Ind. App. 225, 115 N. E. 92; Jacowicz v. Delaware, etc., R. Co. (1914), 87 N. J. Law 273, 92 Atl. 946, Ann. Cas. 1916B 1222. It follows that the giving of such instruction, if error, was harmless.

6. 7. Appellant also predicates error on the action of the court in giving said instruction No. 10 by the use therein of the following statement: “As to whether or not the conditions existed as stated in this instruction, are all questions of fact which you are to determine under all the evidence in the case.” The specific objection is directed to the words italicized by us. Preceding the use of the sentence quoted, the instruction treats of the respective rights of the railroad company and the street car company with reference to the crossing in question, including the duty of those in charge of such street car to stop the same and permit the cars of appellant to pass over such crossing under certain conditions. It is apparent from the connection in which the words in question are used that the jury could not have understood that they were to consider any evidence, in determining the questions to which such instruction was addressed, except such as properly bore thereon. Pittsburgh, etc., R. Co. v. Reed (1909), 44 Ind. App. 635, 88 N. E. 1080; Cohen v. Reichman (1913), 55 Ind. , 102 N. E. 284. Moreover, appellant has failed to point ont any evidence which in onr judgment could have improperly influenced the jury in determining the question covered by such instruction, had it been considered. The error, if any, was therefore harmless. ' Mesker v. Leonard (1911), 48 Ind. App. 642, 96 N. E. 485; Sanitary Can Co. v. McKinney (1912), 52 Ind. App. 379, 100 N. E. 785; Inland Steel Co. v. Gillespie (1913), 181 Ind. 633, 104 N. E. 76.

Appellant claims that said instruction No. 11 invades the province of the jury, and is therefore erroneous. This instruction only purports to advise the jury concerning the duties of the respective companies toward each other, with reference to stopping at the crossing in question, and was correct within the ■ scope it assumed to cover. "When read in connection with the preceding instructions bearing on the same subject, we do not believe it is subject to the objection made by appellant. .

8. 9. 10. By said instruction No. 12 the jury was told in substance that, notwithstanding the fact that there was no statute in force in Indiana which required appellant to have its cars equipped with air brakes, and .to use the same in stopping its cars when switching the same within the corporate limits of the city of Vincennes, still, if they found from the evidence that at the time of the collision in which appellee received his alleged injuries appellant was so engaged,’with an engine and cars so equipped, that it was proper in the practical conduct of such switching to use said air brakes to facilitate the stopping of its cars before they collided with the-street car in which appellee was a passenger, but áppellant’s servants in charge thereof failed to usé such air brakes for such purpose, they could consider such failure, in connection with all the other evidence in the case, to determine the fact as to whether or not appellant exercised ordinary care and diligence to avoid the collision of the cars and the injury to appellee. Appellant contends that there was no law requiring it to equip its cars with air brakes and use the same to facilitate stopping while engaged in a switching operation, and hence the giving of such instruction was error. It may be conceded that there was no statute requiring appellant to so equip its cars and use the same for such purpose, but it does not follow that it was not appellant’s duty to use the air brakes with which it is conceded such cars were equipped. Whether it was its duty so to do depended on whether such acts were reasonably necessary in the discharge of its duty to exercise ordinary care and diligence to avoid such collision and injury to appellee, and was a question for the determination of the jury. Pennsylvania Co. v. Hensil (1880), 70 Ind. 569, 36 Am. Rep. 188; Evansville, etc., R. Co. v. Hoffman, supra; United States Cement Co. v. Cooper (1909), 172 Ind. 599, 88 N. E. 69; American Hominy Co. v. LaForge (1915), 184 Ind. 600, 111 N. E. 8. The relevancy of such instruction becomes manifest when it is noted that the evidence discloses that the switch engine in question, on the occasion of the alleged collision and injury to appellee, was engaged in moving seven large refrigerator cars backward in the nighttime for a distance of over a mile on a track, a portion of which ran through a populous portion of a city, and passed over highways and at least one street car line, and that such engine and cars were equipped ■with air brakes, ready for use when connected. It is further urged by appellant against said instruction, that it is in hopeless conflict with instructions Nos. 7, 8, and 10 given on its request, and hence confusing to the jury. By instructions Nos. 7 and 10 the jury was informed in substance that appellant owed no duty to equip its cars with air brakes, and have them connected and in use, merely in order to avoid injury to street cars or other vehicles which might be placed in peril at crossings through the negligence of persons in charge of them, or to avoid injury to persons who voluntarily and negligently put themselves in dangér at such crossings. This was a correct statement, and not in conflict with said instruction No. 12. The conflict between said instruction and instruction No. 8, given by the court at the request of appellant, grows out of the fact that the latter instruction is erroneous in stating, as a matter of law: “That it is not negligence for a railroad company to fail to connect, use, and operate air or power brakes on such of its engines or cars, as are being handled in yard service, or by local trains performing switching service.” Such failure may not have been unlawful, and therefore not negligence per se, but it may have been an act of negligence nevertheless, depending on existing conditions, and hence was a question for the jury. However, since said instruction No. 8 was given at the request of appellant, and was more favorable to it than the law warrants, any such conflict was harmless. Appellant also claims that said instruction No. 12 contains the same objectionable feature urged against instruction No. 10 given by the court on its own motion, but what we have said regarding the alleged error in that instruction applies with equal force here. We therefore conclude that the giving of said instruction No. 12 was not error.

11. 12. 13. Appellant claims that the court erred in refusing to give instruction No. 9 tendered by it. It has been repeatedly held that a failure to properly present an alleged error on appeal waives the same. Duffy v. England (1911), 176 Ind. 575, 96 N. E. 704; Parker v. Boyle (1912), 178 Ind. 560, 99 N. E. 986. A proper presentation of such error required that appellant’s brief should “contain under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them,” as provided by clause 5 of Rule 22 governing the preparation of briefs. The only reference made by appellant in its propositions or points to the error in question is as follows: “The court erred in refusing to give instruction No. 9 requested by defendant, and set out ante p. 19.” Such statement is not a compliance with said rule, and presents no question for our consideration. Wellington v. Reynolds (1911), 177 Ind. 49, 97 N. E. 155; Wysor Land Co. v. Jones (1899), 24 Ind. App. 451, 56 N. E. 46; Hart v. State (1913), 181 Ind. 23, 103 N. E. 846; Inland Steel Co. v. Smith (1906), 168 Ind. 245, 80 N. E. 538; McMurran v. Hannum (1916), 185 Ind. 326, 113 N. E. 238. An omission to comply with such rule cannot thereafter be cured by a discussion of the alleged error in the argument. Ewbank’s Manual (2d ed.) §180a; Pittsburgh, etc., R. Co. v. Lightheiser (1906), 168 Ind. 438, 78 N. E. 1033; Michael v. State (1912), 178 Ind. 676, 99 N. E. ; Wolf v. Akin (1913), 55 Ind. App. 589, 104 N. E. 308; Moore v. Ohl (1917), 65 Ind. App. 691, 116 N. E. 9.

14. ■ Appellant predicates error on the action. of the court in excluding certain evidence offered by it. It appears that one Dr. Lex was called as a witness for appellee, as to tbe nature and extent of tbe injuries for wbicb he sought to recover damages, and was asked on cross-examination, by appellant if be bad not been indicted in Breckenridge county, Kentucky, for violation of tbe liquor laws of that state, and for violation of tbe law in selling cigarettes to minors. In bis answers to such questions be denied that be bad been so indicted. Appellant afterwards sought to impeach such witness by proving by one Claud Mercer that while be was tbe Commonwealth’s attorney for said county be saw tbe witness Lex arraigned on several indictments or informations, and that be pleaded guilty and paid bis fines, and by introducing in evidence certified copies of certain records of tbe court of said county, having criminal jurisdiction, showing that said witness was prosecuted on indictments and on informations in said county for tbe violation of tbe liquor laws, and for selling cigarettes to minors. On appellee’s objections tbe court excluded such evidence, to wbicb rulings appellant excepted. It is apparent from tbe evidence offered that appellant was seeking to impeach the witness on a collateral matter, involving bis prosecution for one or more criminal offenses. As affecting appellant’s right so to do, it is well settled in this state that while a court may, in its discretion, permit a witness to be interrogated as to specific extraneous offenses', and conduct calculated to degrade him, and thus impair his credibility as a witness, the party propounding the interrogatory is bound by the answer the witness gives, and will not be permitted to introduce substantive evidence to contradict it. City of South Bend v. Hardy (1884), 98 Ind. 577, 49 Am. Rep. 792; Dunn v. State (1903), 162 Ind. 174, 70 N. E. 521; Rock v. State (1916), 185 Ind. 51, 110 N. E. 212; Johnson v. Samuels (1916), 186 Ind. 56, 114 N. E. 977. It follows that the court did not err in excluding such evidence.

15. It is finally urged that the verdict is not sustained by sufficient evidence and is contrary to law, based on the ground that there is no evidence in the record that any negligence 'of appellant contributed to cause appellee’s injury, while the undisputed evidence shows that the negligence of the street car company was the sole proximate cause of such injury. We have carefully examined the evidence in this regard, but fail to find such a state of facts shown thereby as will warrant this court in sustaining appellant’s contention, and thereby declaring, as a matter of law, that appellant was not guilty of any act of negligence which proximately contributed to appellee’s injury. The rule is well settled that, where reasonable minds may differ upon the conclusions and inferences to be drawn from the evidence, then the question is one of fact for the court or jury trying the cause. Such a case is presented by the evidence here. Indiana Union Traction Co. v. Love (1913), 180 Ind. 442, 99 N. E. 1005; Vincennes Traction Co. v. Gurry, supra.

We find no available error in the record. Judgment affirmed.

Note. — Reported in 118 N. E. 151. See -under (4) 33 Cye 1042; (5) 33 Cye 977; (9) 33 Cye 977; (10) 33 Cye 1110; (16) 40 Cye 2622; (17) 40 Cye 2622.