Pennsylvania Co. v. Reesor

108 N.E. 983, 60 Ind. App. 636, 1915 Ind. App. LEXIS 59
CourtIndiana Court of Appeals
DecidedMay 25, 1915
DocketNo. 8,469
StatusPublished
Cited by13 cases

This text of 108 N.E. 983 (Pennsylvania Co. v. Reesor) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania Co. v. Reesor, 108 N.E. 983, 60 Ind. App. 636, 1915 Ind. App. LEXIS 59 (Ind. Ct. App. 1915).

Opinion

Shea, C. J.

Appellee, as administrator, brought this action to recover damages for the death of his decedent, who was struck and killed by a train of appellant in the city of Valparaiso, Indiana, on July 27, 1908. The cause was tried on the third and fourth paragraphs of amended complaint. The [640]*640third paragraph is predicated upon the theory of wilful injury. Inasmuch as the verdict of the jury is based wholly on the fourth paragraph, the third is not set out in this opinion. The fourth paragraph alleges in substance that in July, 1908, decedent was a student at Valparaiso University in the city of Valparaiso, Indiana-; that appellant’s double track line of railroad and right of way adjoins the grounds of the university at and near the crossing of Greenwich Street in said city; that on the evening of July 27, 1908, between six and seven o’clock, decedent was walking east on appellant’s south track near said Greenwich Street crossing within the corporate limits of the city; that at the same time a passenger train operated by appellant was approaching decedent on the south track from the west, one of its trains from the east was approaching and passing decedent on appellant’s north track; that the noise of the passing train running west prevented decedent from hearing the approach of the train running east, and on that account he did not at any time know that he was in danger of being run over by said train; that the engineer in charge of the train running east, when more than 800 feet away from decedent, saw him on the track in front of the train, and then and there discovered that he was in peril and unaware thereof, and continuously thereafter observed him on the track, and realized his danger; that said engineer “discovered said peril in time, by the exercise of ordinary care to have avoided the injury to said decedent, but negligently failed to do so, and defendant, by its agents and servants then and there carelessly and negligently ran said locomotive and train of cars against 'and over decedent,” thereby causing his injuries and death; that appellant’s agents and servants operating said locomotive and train were engaged in the discharge of [641]*641their respective duties and acting in the line of their employment; that decedent was 22 years old, of sound health and large earning capacity, and left his father and mother and brothers and sisters as next of Mn, for whose benefit the action was instituted. Demurrers to each of these paragraphs were overruled. An answer in general denial formed the issues submitted to a jury for trial, resulting in verdict and judgment for appellee. With its general verdict, the jury returned answers to certain interrogatories.

It is assigned that the court erred in overruling, (1) appellant’s motion for judgment on the facts found in answer to the interrogatories notwithstanding the general verdict; (2) its motion for judgment notwithstanding the general verdict (on the pleadings) ; (3) its demurrer to each the third and fourth paragraphs of amended complaint; (4) its motion for a new trial; (5) its motion in arrest of judgment.

1. [642]*6422. 3. [643]*6434. [641]*641The first question presented and argued is the alleged error of the court in overruling the motion , for judgment on the facts found in answer to the special interrogatories submitted, notwithstanding the general verdict. The trial court submitted forms of verdict to the jury, which returned a general verdict, finding for appellee on his fourth paragraph of complaint. No objection is presented as to the form of the verdict. It is correctly argued by appellant that this finding of the jury was in effect a finding against appellee on the third paragraph of the complaint. This is fully sustained by the following authorities. Central Union Tel. Co. v. Fehring (1896), 146 Ind. 189, 193; 45 N. E.. 64; Union Central Life Ins. Co. v. Huyck (1892), 5 Ind. App. 474, 32 N. E. 580. The fourth paragraph of the complaint on which the verdict [642]*642rests, appellee insists, is drawn on the theory that the injury was due to the negligence of appellant, invoking the doctrine of last clear chance. Interrogatory No. 38 and the answer thereto read as follows: “Did said John Bechtol as such engineer ‘wilfully or intentionally’ run said engine upon or cause it to strike said A. F. Reesor? A. Yes.” It is argued that this finding is in such irreconcilable conflict with the general verdict that both can not stand, and, therefore, the motion should have been sustained. It is well settled that the doctrine of wilfulness and negligence are antagonistic, and can not be reconciled, therefore, appellant contends if the injury complained of was wilfully committed, a verdict based upon the fourth paragraph of complaint charging negligence can not stand, and the motion should have been sustained. The following authorities sustain this contention. Barrett v. Cleveland, etc., R. Co. (1911), 48 Ind. App. 668, 96 N. E. 490; Louisville, etc., R. Co. v. Bryan (1886), 107 Ind. 51, 54, 7 N. E. 807; Miller v. Miller (1897), 17 Ind. App. 605, 47 N. E. 338; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 14 N. E. 228. Appellant’s position in this respect is sound, and must be upheld if the interrogatory submitted was a proper one, and the faet elicitéd thereby can be considered by this court. The statute under which interrogatories are authorized to be submitted to the jury, being §572 Burns 1914, Acts 1897 p. 128, provides that when “requested by either party, the court shall instruct them (the jury) when they render a general verdict to find specially upon particular questions of fact to be stated to them in writing in the form of interrogatories on any or all the issues in the cause.” It is argued that this interrogatory is improper for the reason that it called for a conclusion of law. [643]*643The theory upon which interrogatories are submitted to the jury, as above stated, is violated by the submission of one that calls for a conclusion of law, for it is never the province of the jury to determine by answers to interrogatories questions of law. Facts only should be sought, as the statute clearly contemplates. Tippecanoe Loan, etc., Co., v. Jester (1913), 180 Ind. 357, 375, 101 N. E. 915, L. R. A. 1915 E 721; Board, etc. v. Bonebrake (1896), 146 Ind. 311, 317, 45 N. E. 470; Avery v. Nordyke & Marmon Co. (1905), 34 Ind. App. 541, 558, 70 N. E. 888; Insurance Co. v. Osborn (1901), 26 Ind. App. 88, 92, 59 N. E. 181; Chicago, etc., R. Co. v. Ostrander (1888), 116 Ind. 259, 15 N. E. 227, 19 N. E. 110. This interrogatory is subject to criticism for another reason. It presents to the jury two propositions which are in some measure at least conflicting. It asks the jury to state whether the injury was “wilfully or intentionally” inflicted. Injury may result from intentional misconduct, with heedlessness as to consequences, without containing the element of wilfulness. For instance, there may be an intentional omission to perform some duty, which results in an injury, which could not be termed wilfulness, as there may be an intentional omission to give the proper signals in approaching a person upon a railway track, which results in injury. It might be reasoned from this that the injury itself was intentionally inflicted, and yet the element of wilfulness may be lacking.

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Bluebook (online)
108 N.E. 983, 60 Ind. App. 636, 1915 Ind. App. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-co-v-reesor-indctapp-1915.