New York Central Railroad v. Verkins

122 N.E.2d 141, 125 Ind. App. 320, 1954 Ind. App. LEXIS 137

• Court: Indiana Court of Appeals
• Decided: October 29, 1954
• Docket: 18,520
• Status: Published

Opinions

Royse, J.

Appellee brought this action against appellant for damages sustained by her when the automobile in which she was riding as a passenger was in a collision with a train operated and owned by appellant. The allegations of negligence in the complaint are as follows:

“1. That said train was travelling at a high and dangerous rate of speed of in excess ■ of 60-miles per hour.

“2. That said defendant negligently and carelessly failed to give any warning of any type of the approach of said train toward said crossing.

“3. That none of the said servants, agents and employees upon said train kept any lookout of any type for said crossing.”

Trial to a jury resulted in verdict in favor of appellee for $20,000. Judgment accordingly.

The first error assigned here is the overruling of appellant’s motion for a new trial. In view of the conclusion we have reached it is only necessary to consider the third specification of the motion for a new trial, that the trial court erred in refusing to give appellant’s Instruction G. This instruction is as follows:

“The Court instructs the Jury to find for the defendant upon the following allegation of negligence contained in plaintiff’s complaint.

“That none of the said servants, agents and employees upon said train kept any lookout of any type for said crossing.”

Appellant contends there is not a' scintilla of evidence in the record to sustain this charge of negligence. The only evidence relied upon by appellee .to sustain this charge is the testimony of one witness who said he was driving an automobile along a public highway which ran parallel with the railroad tracks and was about 150 feet from said tracks. He said he saw two men in the cab of the engine after the accident who were apparently talking and laughing and it was his conclusion “they didn’t know they had hit anyone.” There was positive uncontradicted evidence that the fireman saw the automobile about one hundred feet before the accident and signalled the engineer who immediately applied the brakes.

It is well settled that it is reversible error for a trial court to refuse to give an instruction withdrawing an issue from the jury when there is no evidence to support such issue. Jarrett et al. v. Ellis (1923), 193 Ind. 687, 141 N. E. 627; Huntington et al. v. Hamilton, etc. et al.; v. Hanna, Judge (1946), 118 Ind. App. 88, 73 N. E. 2d 352 (Transfer denied); Hamling, Executor et al. v. Hildebrandt et al. (1948), 119 Ind. App. 22, 81 N. E. (2d) 603 (Transfer denied); Chicago, South Shore and South Bend Railroad Company v. Pacheco (1932), 94 Ind. App. 353, 361, 181 N. E. 7; Trumbo et al. v. Chicago, Burlington & Quincy R. Co. (1945), 389 Ill. 213, 59 N. E. 2d 92, 95.

We are of the opinion the evidence relied upon by appellee, being merely the conclusion of a witness, had no probative value whatever and leaves the charge of negligence herein referred to wholly without proof.

Judgment reversed, with instructions to the trial court to sustain appellant’s motion for a new trial.