Pennsylvania R. Co. v. Welsh, Admx.

ON PETITION FOR REHEARING. The appellant contends that the verdict of the jury and the judgment thereon are a grave miscarriage of justice against the appellant, from which judgment this court should give relief.

The attorneys for appellant are fair in their statement of the law limiting an appellate court in a case of this kind where there is some evidence to support the verdict, but are insisting that the trial court committed reversible error in certain instructions to the jury.

The appellant claims there was no evidence to prove the width of the highway, and, even though a car of the appellant ran north of a certain post onto a cinder pile, that, unless the exact boundary of the south side of the highway was established, there was no evidence from which the jury could say the car was in the highway, and, therefore, the instruction to the jury stating that there was negligence if the car protruded into the highway and obstructed the view of the deceased was erroneous.

William Griffis, a civil engineer, testified that the width of the highway was 36 feet. In answer to a question, "Where do these coal bins finish with reference to the highway?" he 4. answered, "Right at the highway." There is testimony that the car protruded north of the coal bin, so the jury had evidence from which they could say that the car was in the highway. From this and other physical facts, the location of telephone poles and the width of the improved portion of the highway were sufficient facts upon the subject for the court to give an instruction pertaining to the allegation that the car protruded into the highway.

Appellant also contends that our view of the meaning of instruction No. 9 given by the court is erroneous. We cannot believe it to be sufficiently erroneous to be reversible 5. error, when the court says, in the first place, "If you believe from a fair preponderance of the evidence," and following that statement outlines certain things alleged and upon which there was evidence adduced at the trial, any person of intelligence would understand what the court meant, even though he used the words, "In view of the crossing conditions alleged" and did not add thereto the words, "and proven." Even though the instruction may be ambiguous, yet, when it is considered together with all of the instructions as a whole, the ambiguity, if any, is cleared away. See Grand Trunk, etc., R. Co. v. Cather (1929), 92 Ind. App. 563, 167 N.E. 551, p. 556. It may be observed that the court gave all the instructions requested by appellant, except instruction No. 2 pertaining to the width of the highway above discussed. The complaint describes the condition at the crossing, switches at the side of the main track, a coal shed and a car standing near by, a pile of earth and cinders, live stock pens, grain elevators, grain bins, all of which facts alleged were testified about by some of the witnesses. So we believe that the jury must have understood that they were to be guided by what was proved by a preponderance of the evidence.

Complaint is likewise made of instruction No. 14, where the court uses the words, "without proper signals," but does not define proper signals in the instruction. The appellant 6. submitted and the court gave the following instruction, being No. 18 submitted by appellant: "I instruct you that the mere happening of an accident even though accompanied by proof of the exercise of ordinary care by the plaintiff's decedent, Claude D. Welsh, does not raise a presumption of negligence on the part of the defendant. Negligence on the part of the defendant must be established before there can be a recovery by the plaintiff and such specific negligence as is charged in the complaint, must be established by the preponderance of the evidence before there can be a recovery. If there is a failure of proof in this regard, your verdict should be for the defendant."

When the instructions are considered as a whole, we find there was not sufficient ambiguity in any one instruction to constitute reversible error, therefore, the petition for rehearing is denied.