Chesapeake & Ohio Railway Company v. Burk , 241 Ind. 683 ( 1961 )

Achor, J.

This case comes to us on petition to transfer from the Appellate Court, under §4-215, Burns’ 1946 Repl. See: Chesapeake & Ohio Railway Company v. Burk (1960), 165 N. E. 2d 616, for Appellate Court opinion.

This is an action for the alleged wrongful death of a truck driver whose truck collided with appellant’s freight train at a crossing at the town of Kewanna," Indiana. Trial was by jury and a verdict of damages was rendered in favor of the appellee. The Appellate Court affirmed.

One of the specific acts of negligence asserted by appellee in his complaint was the following:

“19. That the death of said Aaron Burk was proximately caused by the careless and negligent acts of the defendant railway company in each of the following particulars:

b. That the defendant was then and there careless and negligent in that it failed to maintain at right angles at such crossing any sign of warning containing the words ‘DANGER’; ‘RAILROAD CROSSING’; ‘TWO,’ designating a multiple track.”

Among the errors assigned by appellant are the giving of the “Court’s Final Instruction No. 19,” and the refusal of the court to give appellant’s tendered instruction No. 4.

The “Court’s Final Instruction No. 19” reads, in part, as follows:

“Among the acts of negligence charged in the plaintiff’s complaint are the following:

(e) That the defendant failed to have a sign, containing the words: Danger; Railroad Crossing; Two (designating multiple track).

There is no Statute, ruling or regulation, which requires any of the above items as alleged in the complaint. The only issue remaining for your consideration is whether due care under all of the circumstances would require the defendant to provide any of the above items.”

The appellant objected to the instruction on several grounds. Because of some ambiguity in the objection, we will consider only that part of the instruction recited above and the objection thereto which is as follows:

“We object, for the further reason, that the evidence shows that there was a sign, containing the words: ‘Danger,’ and ‘Railroad Crossing,’ and ‘Two,’ designating a multiple track, and there is no evidence to the contrary. The Court is, therefore, submitting an issue of negligence to the Jury, which is outside of the evidence.”

There was no evidence in support of appellee’s allegation “that the defendant failed to have a sign, containing the words: ‘Danger,’ ‘Railroad Crossing’; ‘Two’ (designating a multiple track) ” as referred to in item “e” of said instruction. In fact, the undisputed evidence is that such a sign was present. For this reason, the court’s instruction 19 was in error because, as stated in appellant’s objection, “the court . . . (was) submitting an issue of negligence to the jury, which is outside of the evidence.”

Furthermore, for the same reason above discussed, it was error for the court to refuse to give appellant’s tendered instruction No. 4. This tendered instruction reads as follows:

“I now charge you that one of the allegations of plaintiff’s complaint is that the defendant was careless and negligent in that it failed to maintain at right angles at such crossing any sign or warning containing the words ‘DANGER,’ ‘RAILROAD CROSSING,’ ‘TWO’ (designating a multiple track). I now instruct you there is no evidence from which you can find that the defendant was guilty of negligence by reason of the acts averred in said allegation of said complaint, and as to such charge of negligence you will find for the defendant.”¹

Basically, appellee’s argument in support of the court’s refusal to give appellant’s instruction 4, is that appellant has waived any issue relative thereto because, in the argument portion of his brief, appellant failed to set out and discuss the evidence upon the issue, except to say that “all evidence given showed that there was such a sign or warning at the crossing,” and that the latter assertion is merely supported by the statement of one witness, that there was a cross-arm sign, with a board containing the numeral “3” on it at the crossing. Ap-pellee asserts that, to establish error on the part of the court, appellant should have affirmatively established and argued in his brief the facts regarding the size, position and visibility and other characteristics of the sign.

The fallacy of the above argument rests in the fact that, as one of the grounds of negligence, upon which the complaint is based, appellee specifically alleged: “That the defendant failed to have a sign, containing the words: Danger, Railroad Crossing; Two (designating a multiple track).” The burden of proving the absence of the prescribed sign was upon the appellee. If there was “no evidence” in support of the allegation, it was sufficient for the appellant to so state in the argument portion of his brief. If appellant’s brief failed to correctly state and argue facts which were in evidence and material to the issue, appellee had an opportunity to correct such statement in his answer brief. This the appellee did not do. We must therefore assume that appellant’s statement of the record is correct in that there was no evidence that appellant had failed to maintain a cross-arm sign as alleged in ap-pellee’s complaint.²

Under the above circumstances, we can only conclude that Instruction 19 was erroneous as it related to this particular issue, and that it was error for the court to refuse to give appellant’s tendered instruction 4, which was designed to remove the particular issue from the jury upon which there was a complete failure of proof.

Judgment is therefore reversed and a new trial ordered.

Bobbitt, C. J., Arterburn and Landis, JJ., concur. Jackson, J., concurs in the result.

1 . Rule 1-7 of this court does not require that specific objections be made to instructions which are refused.

. . Rule 1-7 does not require the party requesting any instruction which has been refused to make a specific objection to the ruling of the court. The instruction speaks for itself, and if under the law and facts involved it should have been given, the record at this stage preserves the error. . . .” Gilmore v. State (1951), 229 Ind. 359, 367, 98 N. E. 2d 677.

2 . The fact that the sign was “drab” is a common characteristic of such signs. It may have provided a basis for appellant’s Instruction 10 regarding knowledge of the decedent as to the condition of such sign, as related to the issue of proximate cause, but it did not nullify appellant's right to have the issue as to the non-existence of the sign removed from the jury, in the absence of any evidence upon that issue.