Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Wolf

On Petition for Rehearing.

Willoughby, J.

In appellee’s petition for a rehearing he insists that the court erred in holding that, “after eliminating the answers with which interrogatory No. 44 is in conflict, there remain answers which are in direct conflict with all the material allegations of negligence in the complaint and which show contributory negligence on the part of appellee’s decedent, and which are in irreconcilable conflict with the general verdict,” and says: “We are unable to determine from this statement what answers, in the opinion of the court, are thus eliminated.” The answer to question No. 44 is in conflict with the answer to question No. 53, which was that “the movement of the cars while the decedent was making the coupling was under his direction and control.” It was not in conflict with any other answers. The answers to the other interrogatories are in irreconcilable conflict with the general verdict.. A re-examination of the case confirms us that the conclusion reached in the original opinion is correct. The appellee’s petition for a rehearing is overruled.

*596The appellant asks the court to change the mandate so that instead of ordering the circuit court to grant a new trial that court will be ordered to sustain appellant’s motion for judgment in its behalf on the answers of the jury to the interrogatories. The appellant proceeds upon the theory' that, if the answers to the interrogatories are in irreconcilable conflict with the 'general verdict, then judgment must be given on the answers of the jury, and the question of a new trial is not considered. In support of this contention he cites §573 Burns 1914, §547 R. S. 1881, which is as follows: “When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.”

Appellant’s contention in this regard is not sustained by authority. It is in the sound discretion of the Supreme Court to say whether the cause shall be sent back for a new trial, and appellant has no absolute right to insist, on judgment on the answers to the interrogatories. Where justice requires, the Supreme Court may order a new trial, though the answers to interrogatories to the jury may technically entitle appellant to judgment. Inland Steel Co. v. Kiessling (1910), 174 Ind. 630, 91 N. E. 1084; Donaldson v. State, ex rel. (1906), 167 Ind. 553, 78 N. E. 182; Bemis Indianapolis Bag Co. v. Krentler (1907), 167 Ind. 653, 79 N. E. 974; Chicago, etc., R. Co. v. Wilfong (1910), 173 Ind. 308, 90 N. E. 307; Shoner v. Pennsylvania Co. (1892), 130 Ind. 170, 28 N. E. 616, 29 N. E. 775; State, ex rel. v. Beckner (1892), 132 Ind. 371, 31 N. E. 950, 32 Am. St. 257; Farmers, etc., Ins. Assn. v. Stewart (1906), 167. Ind. 544, 79 N. E. 490; Childress v. Lake Erie, etc., R. Co. (1914), 182 Ind. 251, 105 N. *597E. 467; Morrissey v. Cleveland, etc., R. Co. (1916), 61 Ind. App. 90, 110 N. E. 105; Wendel v. Cleveland, etc., R. Co. (1908), 41 Ind. App. 460, 82 N. E. 469; §702 Burns 1914, §660 R. S. 1881; Busldrk, Practice 334; Elliott, App. Proc. §563.

Appellant’s petition to change the mandate is overruled.

Myers, C. J., not participating.