Hadley v. Lake Erie & Western Railway Co.

Eobinson, J. Appellant sued appellee to recover damages alleged to have been sustained by him while unloading goods from one of appellee’s cars. Upon a special verdict returned by the jury the trial court rendered judgment in appellee’s favor. The errors assigned call in question the action of the court in rendering judgment in appellee’s favor on the special ver — 677 — diet, in overruling appellant’s motion for a venire de novo, and in refusing to permit appellant to file a motion for a new trial. Whether appellant was guiltless of negligence proximately contributing to his injury depends upon the law applicable to the following facts as found in the special verdict: A stock of merchandise and groceries was shipped to appellant, at Cicero, Indiana, on appellee’s road, arriving in the forenoon of the 31st day of Margh, 1894, in a car which was placed on a side-track, the usual place of unloading freight at said station. At the time of the accident there was a passenger train and a freight train on the side-track containing said car, both of said trains bound south, and about the time of the accident a train was due from the south. Said side-track was the passing point for two or more trains at or near the time of the accident which fact was known to appellant at the time. Appellant had been familiar with the location of the tracks at said place for ten years prior to the time of the accident. Appellant knew that the car containing his goods was coupled to a freight train which was cut in two, the locomotive being engaged in switching, and he knew that the time when the train would couple up was uncertain. In the afternoon of said day appellant drove to the car, and backed his wagon up to the car in snch close contact therewith that any ordinary movement of the train in coupling up was liable to upset the wagon. There was an iron step or ladder on the side of the car next to the wagon. After appellant had finished unloading his goods, and had gotten out into the wagon, the train was coupled up, and the car moved so that the iron step or ladder or some part of the car. caught the wagon, and upset it, throwing appellant to the ground, and injuring him. — 678 — Certain interrogatories were submitted to the jury, and answered by them, to the effect that appellant’s injuries were received without any fault or negligence on his part contributing thereto, and also that appellant’s injuries were caused by the negligence and carelessness of appellee. Such interrogatories and answers are not proper in a special verdict, and are to be disregarded in considering the verdict. Board, etc., v. Bonebrake, 146 Ind. 311. The verdict shows that appellant was directed by appellee’s agent to the car containing his goods. The verdict does not show that the agent told appellant that he would have plenty of time to get his goods out of the car before any train or cars would move upon the side-track; and in answer to a direct question to this effect the jury refused to answer the question directly, but said that the agent told appellant “that he had time to get his goods out of the car.” The jury simply answered that the agent told appellant that the car was on a certain track, and that he would have time to unload it, and by the above answer they, in effect, negatived the proposition that the agent said appellant would have time to unload the car before any train or car would move it, because they refused to answer that question directly. In this connection the fact must be borne in mind that appellant knew that the car was coupled to a freight train, and that the time when the train would couple up was uncertain. The extent to which appellant could rely upon this opinion of the agent must be determined from the facts and circumstances at the time surrounding him, and of which he had notice. The facts which he was bound to observe indicated the proper line of conduct, and he had no right to ignore such facts, and rely wholly upon the assurance of the agent. But, even if we should admit that he had the right to and did rely — 679 — upon this opinion of the agent, it appears from the verdict that the agent was right, and that appellant did have time to unload his goods, and that he had actually unloaded them, and had left the car, when injured. He was not injured while in the car or while leaving it, and would not have been injured at all had he not had his wagon in contact with the car. The jury found it was necessary for appellant to place his wagon near the car, but appellant has not shown that it was at all necessary for him to place his wagon as he did place it in order to unload his goods. He knew the conditions surrounding him, that the time when the cars would be coupled up was uncertain, and that when coupled up this particular car was liable to be moved. With knowledge of these facts, he placed his wagon — whether necessarily or not he has not shown — in such contact with the Car that any slight movement of the car was liable to upset the wagon. Such act, unexplained in any way on his part, was negligence which proximately contributed to his injury, and precludes a recovery. Counsel for appellant cite the case of Pittsburgh, etc., R. Co. v. Ives, 12 Ind. App. 602. But in that case there was a general verdict, and it does not appear what the facts were. The discussion in that case is wholly as to whether answers to interrogatories necessarily destroyed the general verdict. It does not appear what the evidence in that case disclosed. No one doubts the general principles of law declared in that opinion. There having been a general verdict in that case and it not appearing what the facts were, the case gives no assistance in determining the questions involved in the case at bar. Counsel also cite the case of Toledo, etc., R. Co. v. Hauck, 8 Ind. App. 367. The opinion in that case contains quite a full statement of the facts, and we have no fault to find with the law — 680 — applied to the facts therein stated. But a comparison of the facts bearing upon the question of contributory negligence in that case with the facts upon the same question in the case at bar will show many points of dissimilarity. The conditions existing at the time, the circumstances under which the accidents occurred, the knowledge of such conditions and circumstances possessed by the parties injured, are clearly distinguishable in the two cases. The law applicable to one is not necessarily controlling in the other. The two cases present an essentially different state of facts. The case cited was correctly decided upon the facts, and the case at bar must be determined by its own facts and decided upon them. Appellant has also assigned as error the refusal of the court to permit him to file a motion for a new trial. The case was tried at the September term, 1895, of the Tipton Circuit Court, and the verdict was not returned on the last day of that term of the court. The motion for a new trial was not offered to be filed until the next succeeding term of court. The case was tried by a special judge, but the record does not show that this was because the regular judge was disqualified to sit in the case. The motion for a new trial could have been filed at any time before the close of the term, while the regular judge was presiding, and could have been passed upon at a subsequent term by the special judge. No excuse is shown for not having so filed the motion. Section 570, Burns’ R. S. 1894 (561, Horner’s E. S. 1897); Jacquay v. Hartnell, 1 Ind. App. 500; Shafer v. Milwaukee Ins. Co., 17 Ind. App. 204. There was no error in overruling the motion for a venire de novo. The special verdict is not ambiguous nor uncertain. It contains a full and fair statement of every fact submitted to the jury. It is well settled that a venire de novo will not be awarded unless the — 681 — verdict is so defective and uncertain upon its face that no judgment'can be rendered upon it. Bower v. Bower, 146 Ind. 393; Board, etc., v. Pearson, 120 Ind. 426; 16 Am. St. 325, and cases there cited; Wysong, Ex., v. Nealis, 13 Ind. App. 165. There is no error in the record for which the judgment should be reversed, .and it is, therefore, affirmed.