Norwalk Truck Line Co. v. Kostka , 120 Ind. App. 383 ( 1949 )

ON PETITION FOR REHEARING In its petition for rehearing appellant asserts that our opinion and holding in reference to the answer of the jury to Interrogatory 14 contravenes ruling precedents of the Supreme Court in the following cases: New York Central Railway Company v. Powell (1943), 221 Ind. 321, 327, 47 N.E.2d 615; LakeShore Michigan Southern Railway Company v. Graham, Admr. (1904), 162 Ind. 374, 376, 379, 70 N.E. 484; Republic CreosotingCompany v. Hiatt (1937), 212 Ind. 432, 438, 8 N.E.2d 981;Board of Commissioners of Huntington County v. Bonebrake (1896), 146 Ind. 311, 315, 316, 45 N.E. 470.

In the New York Central case, supra, we are unable to understand how the opinion in that case could possibly be construed to be controlling on this question.

In the Lake Shore case, supra, the Supreme Court stated the answers disclosed the jury found, among other things, the following facts:

"There was nothing to prevent McGuire from seeing the locomotive as it entered upon track No. 3, and he did know that it had entered upon said track, and that it was proceeding on the same in a northwesterly direction. While the locomotive was thus approaching on track No. 3, McGuire started also in a northwesterly direction, walking between tracks No. 2 and No. 3 on the south ends of the ties of track No. 3, and had walked a distance of seventy feet before the locomotive overtook and struck him. He knew the engine was approaching him, and could have seen it at any time if he had looked, but he did not look. He could have seen where the locomotive was at any time after it entered upon track No. 3, before it struck him, if he had looked. At the time he fully possessed the senses of sight and hearing. There was nothing to prevent him from stepping off the ties, and thus avoided a collision with the engine. If he had been giving attention to his surroundings at the time, he could have avoided the injury by avoiding a collision with the locomotive. He did nothing to avoid injury from the approaching engine. It was not necessary for him to be walking where he was on track No. 3 when he was injured. McGuire was at the time familiar with the following rule of the company: ``All (employes) are especially cautioned not to walk upon, nor to stand upon the tracks, except when necessary to do so; and as much may be, to prevent the public from going upon the tracks.'"

The Supreme Court held, in effect, that those answers lead inescapably to the conclusion the decedent did not exercise that degree of care an ordinarily prudent person would have used under the same or similar circumstances, and therefore he was guilty of contributory negligence. But that is not true in this case. The jury found, by its answer to Interrogatory 14, there was no evidence as to what prevented appellee from seeing the trailer in time to avoid the collision. There is nothing in the answer to this interrogatory or in the answers to any of the others to indicate appellee knew appellant's truck was blocking the public highway. There is nothing in any of the answers to indicate that in the exercise of ordinary care he could or should have seen the trailer in time to avoid the collision.

In the case of Republic Creosoting Co. v. Hiatt, supra, the Supreme Court stated, under the complaint "the only cause of action stated or attempted to be stated is to recover damages caused by breathing or coming in contact with fumes, gases, or vapor arising or coming from creosote, or creosote treated blocks." The jury found by its answer to interrogatory No. 2 that the injuries of plaintiff were not caused by working with creosoted blocks. The court held, therefore, the jury by such answer found appellee had wholly failed to prove that appellee's working with creosoted blocks was the proximate cause of his injuries.

Likewise, the facts in the Board v. Bonebrake case, supra, are not applicable herein.

We cannot understand how it could be seriously contended that any of the foregoing cases have any applicability to the answers to the interrogatories in this case.

As indicated in our original opinion, it is well settled in this jurisdiction that where there are possibilities that other evidence which would be admissible under the issues would 24. sustain the general verdict, the answers to interrogatories cannot overcome the general verdict.Brown et al. v. Greenwood (1945), 116 Ind. App. 112, 120,60 N.E.2d 152 (transfer denied). Applying this rule to this case, the jury might well have found or reasonably inferred that when the driver of appellant's vehicle approached the south edge of the highway and saw appellee's car approaching from the west, said driver was negligent in proceeding across said highway and blocking it without first determining that he could do so without endangering the person or property of appellee. And it might reasonably have further found that such conduct was the proximate cause of appellee's injuries.

We adhere to our holding in the original opinion that the answers to the interrogatories are not in irreconcilable conflict with the general verdict.

Other questions raised in the petition for rehearing have been adequately covered in the original opinion.

Petition for rehearing denied.

Martin, P.J., and Bowen, J., dissent.

NOTE. — Reported in 89 N.E.2d 625.