Holliday v. Gardner ( 1901 )

Henley, C. J.

On the 10th day of March, 1898, at about the hour of 12 m., one Robert Ryan, appellant’s servant employed by him to drive his team of horses, was driving said team, harnessed and hitched to an open two-seated carriage, upon the streets of the city of Indianapolis. Two ladies, members of appellant’s family, were seated in the back seat of the carriage. They were the only occupants. At the time of the happening of the particular incidents out of which this controversy arose, the team of horses was being driven north oh Meridian street in said city. The team had been driven as far north as the intersection of Vermont street, about opposite the building known as the Blacheme, when the horses became scared and unmanageable and ran away. After running about two. squares one of the tugs came loose. The rapid motion of the horses caused the tug to be thrown first in one way and then in another, striking and hitting the horses on the legs and bellies. The horses continued to run north on the east side of Meridian street, the driver using every effort in his power to stop them but without any success. He succeeded in so guiding the team as to avoid all collisions until he came to the intersection of Sixteenth street. Appellee’s son was coming from the east on Sixteenth street driving one horse harnessed and hitched to a top buggy. Appellee’s son either did not see the runaway team approaching the Sixteenth street crossing, or was unable -to pull up his horse in time to avoid the collision after he saw it. The pole of appellant’s carriage struck appellee’s horse on the neck, knocking the horse down and slightly injuring it. As a result also of the collision one of appellant’s horses was thrown and the team brought to a standstill -within a short distance of the Sixteenth street crossing. This action was commenced by appellee to recover damages sustained by him growing out of the collision as above detailed. The itemized bill of damages filed with the complaint was as follows:

“William J. Holliday, T'o Charles J. Gardner, Dr. Bill of Schweikle & Prange for repairs to broken buggy ................. $ 4.75

Bill of Drs. Pritchard & Son, Y. S., treating injuries to horse.............. 6.50

Loss of use of injured horse for eighteen days. Loss of use of buggy... days.. 18.00

Eor permanent injuries and damages to horse ..............t........... 25.00

Total.........................$54.25”

The complaint, does not attempt to set out specifically the negligent acts of appellant which caused the injury. The averments of the complaint in this respect are general and are in the following words: “Plaintiff avers- that said damages were the result of the careless and negligent conduct of said defendant, his servants and employes, committed on the.....day of March, 1898, and were caused without any fault or negligence of this plaintiff in anywise contributing thereto.” The complaint is not attacked by motion to make more specific, or by demurrer. The cause was submitted to a jury for trial. The trial resulted in a verdict in favor of appellee, and over appellant’s motion for a new trial judgment was rendered in appellee’s favor.

The alleged errors of the court in refusing to instruct the jury to find .for the appellant, and the insufficiency of the evidence to sustain the verdict are discussed together under the specification of the assignment of errors that the lower court erred in overruling the appellant’s mlotion for a new trial.

The general verdict of the jury was a finding in appellee’s favor upon every material allegation of his complaint. A general verdict is not helped by special findings of facts. It needs nothing of the kind. What the general verdict needs, and all it needs, is some evidence supporting each material averment, the truth of which it affirms. What the jury may have found in answer to- interrogatories as -to the existence of certain facts cannot enlarge the scope or effect of the evidence. It is for the court to say from the evidence whether or not it sustains the verdict. It was nfecessary in this case that the appellee offer evidence to prove (1) the amount of damage he had sustained; (2) that the damage was caused “by the careless and negligent conduct of said defendant, his servants and employes,” and (3) that the said damage was solely caused without any fault or negligence of appellee.

Admitting that the first proposition was established, and admitting for the purposes of this case that the third proposition was also proved, we come then to the second proposition, which represents all there is in the case. It is presented in three different ways, but it remains the same question. It is this: Is there any evidence to sustain the general verdict upon the question of appellant’s negligence ?

Four witnesses testified on behalf of appellee, they being Charles J. Gardner (appellee), J. E. Pritchard, the attending veterinary surgeon, William E. Gardner, a son of appellee and the driver’ of the injured horse, and Charles E. Weaver, who saw the accident. The evidence of appellee Charles J. Gardner only went to the character of the inj ury done his property, and the resulting damage therefrom. The evidence of Dr. Pritchard was only as to the extent and effect of the injuries received by appelleefs horse. The next witness called was William C. Gardner, the young man who was driving the injured horse and who is appellee’s son. He testified in substance as follows: That he was driving west on Sixteenth street, that he first saw the running horses coming when his horse’s head was on a line with the east curb of Meridian street, the runaway team were then moving very rapidly and were running on the east side of Meridian street and about five feet from the east curb. Witness, who was driving in a brisk trot, tried to stop his horse, using every effort to avoid a collision, and had stopped his horse when he was struck by the pole of the carriage drawn by the running horses. His horse was struck between the shoulder and neck and was knocked down. Witness said that it seemed like the driver of the runaway team “pulled the horses right toward my horse.” One of the running horses was knocked down by the collision and the team was soon stopped. They had passed a few feet beyond Sixteenth street when they were finally stopped. Witness also testified that he asked the driver of the runaway team whose rig it was, and that the driver answered that he did not know, and that the driver also said: “If it had not been that I had run into you I don’t know where I would have went.” The next and last witness called by appellee was Charles E. Weaver, a solicitor and collector for Helson Morris & Company. Weaver was in a single rig driving a good horse; he saw the runaway team as they crossed New York street and started after them, and was able to keep within fifty to seventy-five yards of then*. He testified that at the time of the collision he was within about fifty yards of the team; that the team was five or six feet from the east curb of Meridian street when it passed onto Sixteenth street; that he did not see young Gardner and his rig until after the team struck his horse. The runaway team veered to the east as they got into Sixteenth street and I thought the driver was trying to turn them into that street. At the time of the collision the Gardner horse was out into Meridian street as far as the length of the horse. I got to Gardner’s horse before it got up. Appellant’s driver, who was a colored man, was considerably frightened. Young Gardner asked him who this team belonged to and the driver said he did not know who it belonged to, that he was glad he struck the horse; it was no telling where he would have stopped.

Taking the evidence of appellee’s witnesses as a guide, we make the following diagram of the situation:

a. Point of collision, b. Point where appellant’s team stopped. Dotted line, course taken by team. Solid line, course taken by Gardner.

The actionable negligence of appellant in this matter must have been either that he permitted horses known to be i unmanageable to be driven upon the street, or that they were improperly and negligently harnessed or hitched, or improperly and negligently driven either at the time they became scared and unmanageable or at the time the injury occurred. If appellant’s servant was negligent, of what did such negligence consist ? What duty owing to appellee has been violated ? The evidence shows that the horses were carefully hitched and carefully driven; that the harness was good; that the horses became frightened and ran away without any negligence on the part of the driver; that the driver did all in his power to stop them and guided them on the proper side of a much traveled street near the curb, without striking any one until appellee’s horse and vehicle came out from a side street directly in front of appellant’s running team.

Negligence must have a foundation in fact. And this is true whether it be a court or jury that arrives at the conclusion. Wabash, etc., R. Co. v. Locke, 112 Ind. 404, 421, 2 Am. St. 193.

We are unable to find in the evidence adduced a single word which would tend to prove the negligence alleged in appellee’s complaint. The fact that appellant’s driver may have said that he was glad he struck the horse, that if he had not there would have been no telling where he would have stopped, has not, in our opinion, the remotest connection with, or any tendency to prove, negligence upon the part of appellant. It is hard to surmise what lies at the other end of the road to a man and two women behind a pair of frightened, unmanageable, and running horses. Who would not be glad that something happened to stop them ? And was it any wonder when the driver saw that no human life had been sacrificed, no person injured in body or limb, that the only injury was to the horses and the vehicles, that he said he was glad he ran into the horse. But counsel for appellee contend that their case is strengthened by the evidence produced by appellant. With this contention we can not agree. The driver was the only witness who testified concerning the start of the running. His evidence did not in any part tend to charge appellant with negligence. The evidence of appellant’s witnesses and the physical facts show plainly to our minds that the young man, Gardner, must have been guilty of contributory negligence, but upon this issue there is a conflict. The weight of the evidence is for the trial court, and where the verdict of the jury is plainly contrary to the preponderance of the evidence it is the duty of the trial court to grant a new trial. Lake Erie, etc., R. Co. v. Stick, 143 Ind. 449. The sufficiency of the evidence to sustain the verdict will always be considered by the Appellate Court. Lake Erie, etc., R. Co. v. Stick, supra; Wabash Paper Co. v. Webb, 146 Ind. 303; Habbe v. Viele, 148 Ind. 116.

The very best showing possible for appellee, under the evidence, is that the collision was purely accidental, and in such a case there can be no recovery because no blame can attach to anyone. See Ervin v. Evans, 24 Ind. App. 335; Wabash, etc., R. Co. v. Locke, 112 Ind. 404.

Appellant, when appellee had rested his case, interposed a motion to instruct the jury to find for defendant; this motion the court overruled. After all the evidence was in, and the case closed, appellant again moved the court to instruct the jury to return a verdict for appellant. This motion the court overruled, and in doing so committed reversible error. Appellee had failed to produce evidence proving or tending to prove a material part of his cause of action.

The insufficiency of the evidence was first brought to the attention of the trial court by the motion to instruct the jury to return a verdict for appellant. The same question was presented by the motion for a new trial,' which was overruled. Eor the error in overruling the motion for a new trial, the judgment is reversed.

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

Black, J., took no part.