The plaintiff below (appellee) recovered a judgment against the defendant company (appellant) for $6,150 damages for personal injuries *Page 241 sustained in a collision between two interurban electric cars, one of which he was operating as motorman. Plaintiff had received and accepted certain payments under the Workmen's Compensation Law of Indiana, but based his alleged cause of action on the Federal Employers' Liability Act relating to railroad carriers of interstate commerce. Overruling defendant's motion for a new trial and overruling its motion to modify the judgment are assigned as errors.
The motion to modify the judgment is based upon appellant's construction of the evidence, and an argument as to the probable confusion in the minds of the jurors caused by one of the 1. instructions. But, in the absence of any specific findings by the jury in answer to interrogatories, this court cannot know that the jury really intended to award as damages anything else than the amount named in the general verdict. No available error was committed in overruling the motion to modify the judgment.
The complaint was in three paragraphs. The first and second paragraphs charged negligence of the train dispatcher, setting out certain rules adopted and promulgated by defendant, which were alleged to have been in force at the time of the accident, and averring that after having ordered plaintiff, as motorman of a work extra car, to work between the stations of Watson and Sellersburg, keeping out of the way of regular scheduled trains, the train dispatcher negligently ordered another extra train to run north from Watson toward Sellersburg at a time when plaintiff was properly, and in obedience to the rules and his orders, running south to Watson, to get out of the way of a regular scheduled train that was coming from the north, and that the collision and plaintiff's injuries were caused by such negligence of the train dispatcher. They differed in *Page 242 that the first paragraph charged that the train dispatcher ordered the north-bound extra into the limits within which plaintiff's car was working, without having made any provision for meeting and passing the work car, while the second charged that at the time the north-bound extra was ordered to run past Watson upon the single track road on which plaintiff's car was working, the defendant and its train dispatcher knew, or by the exercise of reasonable diligence could have known, that plaintiff was running the work car south to Watson to keep out of the way of the regular train from the north. The third paragraph of complaint alleged that a rule in force provided that when an extra received orders to run over working limits, and was advised that a car was working as extra between designated stations, it must run between those stations expecting to find the work train within the limits named; but that the motorman in charge of defendant's north-bound extra, being ordered to run from Watson to Sellersburg, and told by the order that plaintiff was working there with his work extra car, and having knowledge of that fact, negligently ran said north-bound car into the work limits at a high and dangerous rate of speed, to wit, at thirty miles per hour, and so that it could not be stopped when it met plaintiff's work extra running south to Watson for the purpose of letting the regular south-bound train pass, but ran against plaintiff's car and thereby injured him. The answer was a general denial and certain affirmative pleas.
The evidence proved, without dispute, that defendant was operating under the Standard Railroad Rules, as generally adopted by railroads in this country, which had been approved by the American Railway Association and by the Public Service Commission of Indiana; that these rules provided for sending out a work extra to work between designated stations during certain *Page 243 hours, "protecting itself against all trains"; required all extra trains to keep out of the way of regular scheduled trains, and to clear the line for them at least five minutes; that where an extra was sent into the working limits of a work extra, it must be advised of that fact by adding a statement in the following form: "Car No. 8 is working as an extra between Watson and Sellersburg"; that being so advised, it must run expecting to find the work car within the limits named; that a work car met or overtaken by an extra must allow it to pass without unnecessary detention; that an "extra train" was any train or car not represented on the time table, including "work extras" and other "extras"; that a "single track" was a main track on which cars were operated in both directions; that extra trains were inferior to all scheduled trains, and had no rights except those conferred upon them by train orders. And that, at the time of the accident and for many days before, plaintiff had been operating a work extra motor car on the single track between Watson and Sellersburg; that he had an order for his car to "work as an extra between Watson and Sellersburg from 7:17 a.m. until 4:45 p.m. (the day of the accident); protect against all trains"; and had worked under similar orders on previous days; that he had on his car a conductor and a man who loaded and unloaded cross-arms to be attached to new poles that were being set for carrying wires used in the operation of the railroad, and worked with a crew of fourteen men who set the poles and strung the wires; that during all the time he had been so working, extra trains had been run to the number of three or more daily from Watson to Sellersburg and back, carrying cement from a factory to Jeffersonville and Louisville, and at least one round trip had been made by an extra car that morning; that there were two passing tracks, at intervals of a mile or two, in the *Page 244 distance (4.8 miles) between Watson and Sellersburg; that the extra by which plaintiff was injured was sent north from Watson into the work limits in which plaintiff's car was operating, under an order given to him at Watson to proceed to Bridge siding (about two miles north) and there pass No. 64 (a south-bound regular scheduled train), which order stated that car No. 8 (which plaintiff was operating) was working as extra between Watson and Sellersburg. And that plaintiff was running his work extra car south, toward Watson, to get out of the way of No. 64, when it met the north-bound extra just south of a curve in the track about one-half mile from Watson.
Obviously, if both plaintiff and the motorman on the north-bound car had been running in obedience to the orders they had, respectively, received and in obedience to the rules, 2. neither would have been going so fast but that he could have stopped within half the distance from his car to the other one after he could see it approaching, and the collision would not have occurred. And we have not been referred to evidence sufficient to sustain a finding that the injury was caused by negligence of the train dispatcher, as charged in the first and second paragraphs of the complaint, if the jury had so found. But there was evidence tending to prove that negligence of the motorman in charge of the north-bound extra, in running into the work limits of plaintiff's car at such a rate of speed that he could not stop after he saw the work car on the track ahead, was the cause or one of the causes of the accident, and we must assume that the verdict is based upon that evidence, which is sufficient to sustain it.
Defendant undertook to cross-examine plaintiff about facts material to an affirmative defense set up by answer, *Page 245 about which he had not been examined in chief, but 3. concerning which he had testified, on cross-examination by his own counsel, when a preliminary examination of the plaintiff under oath was taken before the trial, that had not, however, been introduced in evidence. It was not error to sustain an objection to such cross-examination.
In his examination in chief, plaintiff testified that he received the order above referred to and worked under it between Watson and Sellersburg that day up to the time of the 4. accident; that there is a junction at Watson used for cars to pass each other; that just before the collision, he was at work at Beechwood, nearly a mile north of Watson, where there was an intermediate signal block, but no passing track; that the first passing track north of Watson was at Bridge siding, a mile and a half north of Beechwood, and the next was at Quarry siding, something more than a mile farther north, being more than a mile south of Sellersburg; that at noon that day, he ran the work extra to Watson and there obtained a supply of materials for his work, and, while there, talked to the train dispatcher over the company telephone, used for giving and receiving orders, saying that he was at Watson with extra 8, and wanted to distribute cross-arms and return to Watson ahead of No. 64, and asking if anything extra was coming south; and that the train dispatcher said there was nothing coming, but did not inform plaintiff that any extra was coming north; that No. 64 was a regular local passenger train from the north; that, after this conversation, plaintiff went down the track northward toward Sellersburg, throwing off a cross-arm at each pole, and after running three-fourths of a mile, turned and ran south to get out of the way of No. 64; but he repeated three or four times in his testimony, in answer to repeated questions asked by his counsel, *Page 246 that he did not know the north-bound extra which injured him would be sent or was coming into his work limits until he saw it coming rapidly toward him as he rounded a curve in the track; that a little hill and some bushes ten or fifteen feet high were on the inner side of the curve, and obstructed his view of the track on which the other car was coming until he was almost around it, and that there was no telephone nearer than the station at Watson over which he could have learned that an extra was coming from the south. But he identified the order under which he was working, which contained the direction to "Protect against all trains." On cross-examination, he was asked a series of questions, intended to elicit evidence of what he had learned about this same extra car running through his work limits and back, in hauling cement, during two months that he had been working between Watson and Sellersburg. More than thirty questions were asked, all going to the proposition that extra cars, including the one by which plaintiff was injured, were making several round trips each day between Watson and Sellersburg, for the purpose of hauling cement from a mill north of Sellersburg to points south of Watson, and had been doing so almost daily for some weeks while plaintiff was working there, and that he knew such extra cars were operating there, and knew that he must protect against them, without being specially notified of that fact by the train dispatcher. Objections on the ground that this was not proper cross-examination were sustained to all of these questions, and defendant excepted. This was error. If plaintiff chose to testify to any facts in issue, he was subject to cross-examination covering as wide a range as his testimony. Whether he had such knowledge that this extra car was being operated and would probably be running through his work limits at that time so as to be chargeable with assumption of the risk of injury *Page 247 in case it was operated in the usual manner, and whether he was guilty of negligence which alone caused the injury, or which contributed to cause it, were questions in issue, to which his evidence in chief and the excluded questions on cross-examination both related.
Instruction No. 19, given at the request of appellee, was as follows: "When an interstate railroad company delegates to one of its servants, such as a train dispatcher, the duty of 5. giving orders for the movement of trains on such railroad, then such company is liable for the negligent failure of such train dispatcher to perform such duty, where by reason of such failure another servant of such company is injured, if such injured person has not assumed the risk." This instruction was objectionable in form, as making an affirmative declaration of liability upon facts which it did not purport to submit to the jury for its finding, being so framed that it might mislead the jury into believing that it was declaring the law applicable to this case without qualification, and that the expression "such company is liable for the negligent failure of such train dispatcher to perform such duty" was meant for a declaration that defendant was liable in this case. Whether or not this would be fatal if the instruction were applicable to the issues and evidence need not be decided; but in view of the fact that there was not sufficient evidence to make out a cause of action on the ground of the train dispatcher's negligence, it was clearly error to give it.
Counsel for plaintiff took the position in the court below and insist here that the language of the order to be given to a work extra car, "protecting itself against all trains," did 6, 7. not refer to protection against extra trains of which those in charge of the "work extra" had no actual knowledge, but only to protection against regular scheduled trains and extras *Page 248 as to which the work extra had received a special passing order. And the plaintiff and other trainmen testified what they understood the words "all trains" to mean. But there was no evidence that the defendant or any of its employees had given the rule a practical construction which differed from the plain, obvious meaning of the words in which it was expressed or which suggested any doubt as to its meaning. And the rule and the order having the words "all trains," the mere fact that one or more workmen testified that they did not think it meant all of the trains operated over the railroad, but only certain of them, could not change the obvious meaning expressed by the language used. Defendant asked an instruction (No. 37) to the effect that if the jury found said rule to have been in effect, and that plaintiff knew of it and was working under it, then it was his duty to protect himself against all trains, and that this included the extra by which he was injured. The court refused to give this instruction, but gave one asked by plaintiff (No. 39) to the effect that defendant claimed the expression "all trains" included the extra trains, even though the employees on the work train did not know any extras had been ordered into the working limits, while plaintiff contended that it only embraced regular trains and extras of which said workmen had notice; that, because of these different constructions, evidence had been introduced to explain the meaning of such wording, and that the jury should "understand the rule just as the same was understood by the men affected and governed by the same, and apply the same as it was understood by such men." This was error. The language of the rule was not ambiguous, in itself, and there was no evidence of a latent ambiguity arising out of the practical interpretation given to those words by the defendant or by its authority in the operation of the railroad. And the *Page 249 mere fact that plaintiff contended for a restricted application of the words "all trains," so as to embrace only part of the trains run through the work limits, was not sufficient reason for failing to construe the rule according to its plain meaning, in the absence of proof that by agreement, or usage, or otherwise, it had acquired another meaning, binding upon the defendant. The construction of a rule is for the court, and should not be left to the jury, except where it contains ambiguous language and the evidence as to the existence or non-existence of facts on which its meaning depends is in conflict. Cleveland, etc., R. Co. v.Gossett (1909), 172 Ind. 525, 87 N.E. 723.
But this rule not being ambiguous on its face, and no facts raising a latent ambiguity having been proved, its meaning should not have been left to the jury, but should have been declared by the court.
Appellant asked an instruction to the effect that if both plaintiff and defendant were found to have been guilty of negligence which contributed to cause the injury, the jury 8. "must charge the plaintiff with any damages he has suffered by reason of his own negligence and deduct such damagesfrom any damages he has suffered by reason of the negligence ofthe defendant." (Our italics.) This instruction was properly refused. The correct rule under the Federal Employers' Liability Act is that if both the defendant and plaintiff are found to have been guilty of negligence which operated to cause the injury and damage complained of, the total damages thereby caused should be diminished in the proportion that plaintiff's own negligence bore to the combined negligence of both. Norfolk, etc., R. Co. v.Earnest (1913), 229 U.S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C 172; Pennsylvania Co. v. Cole (1914), 214 Fed. 948, 131 C.C.A. 244. *Page 250
The defendant asked for an instruction (No. 47) as follows: "The defendant in the fourth paragraph of its answer alleges that it has paid to and for the plaintiff, on account of the 9. injuries sued for the sum of $1,150. If you find from the evidence that this averment has been proven, and that the defendant has paid said sum of $1,150 or any other sum to andfor the plaintiff I instruct you that you should take the fact into consideration in making up your verdict." The only objection to this instruction suggested by counsel for appellee is that the evidence did not show payments of more than $767.20 for which defendant was entitled to credit. But the requested instruction would have said "$1,150 or any other sum," and the court did not give any instruction at all declaring the principle which it lays down. It was applicable to the issues and the evidence, and should have been given.
Complaint is made of alleged misconduct of counsel for plaintiff in his closing arguments to the jury in writing upon a blackboard a calculation of what he said was the amount of 10. damages that ought to be awarded, "and keeping it immediately in front of the jury during the entire time consumed in the further argument." Assuming that using such means of communicating to and impressing upon the jury his contention as to the amount of damages to be awarded constituted misconduct, defendant has not shown itself entitled to a new trial on that account. Only figures are shown to have been written on the blackboard, and the bill of exceptions merely recites that the figures and calculations showed a total of $16,900, "which amount said attorney in his argument contended should be awarded plaintiff as damages," and that defendant "objected to said misconduct," and that, "immediately after the closing argument for the plaintiff," *Page 251 defendant moved to withdraw the submission from the jury because of such misconduct. It does not appear that removal of the blackboard or erasure of the figures, nor any action by the court except withdrawal of the submission, was requested and refused, nor is it made to appear that defendant could not have obtained full relief by promptly asking such removal or erasure or other immediate relief. Setting aside the submission is a drastic remedy, not lightly to be applied when a milder remedy might afford complete relief, if requested.
Other alleged errors are complained of, but they may not be committed when the cause is again tried.
The judgment is reversed, with directions to grant a new trial.