PER CURIAM
Appellee filed a motion to dismiss or affirm this appeal because of the failure of appellant to have the clerk's seal on the certificate to the transcript.
In the meantime, appellant filed a timely petition for leave to attach verification to the transcript which was granted and the seal has been affixed. Appellee also requested and obtained an enlargement of the time within which to file a brief on the merits and that brief has been filed.
We are aware of some early decisions refusing to consider an unsealed transcript. A more recent tendency has
Even an objection that the clerk's certificate to the bill of exceptions is not in the record does not go to the merits of the appeal and is waived by a petition for extension of time. Langford v. DeArmond (1965), 137 Ind.App. 439, 209 N.E.2d 737, Vol. 6, #4 Ind. Dec. 207.
Where the courts have appeared technical in inadvertent matters there usually has been no effort to correct them. Here we have witnessed prompt action and no delay to the proceedings.
The motion also states that pretrial pleadings in this case were filed and determined in the Hamilton Circuit Court and that subsequently the venue thereof was changed to the Marion Circuit Court; that the transcript does not show authentication of any such pretrial pleadings or record of the Hamilton Circuit Court. It is not shown nor alleged that the same are necessary or material to disposition of this appeal on the merits and we may not and do not so assume.
The petition to dismiss is denied and the motion to affirm is held in abeyance for opinion on the merits.
OPINION ON THE MERITS
FAULCONER, J.
This appeal is based upon an action brought by appellee, Dessie Mikesell; and her since deceased husband, John Milford Mikesell, against appellant, Central Indiana Railway Company, in the Hamilton Circuit Court, for damages to real and personal property of appellee. The cause was later venued to the Marion Circuit Court. The issues were formed by appellee's amended complaint in two paragraphs and appellant's answer in general denial, and second paragraph of answer.
Paragraph I of the amended complaint alleged, in pertinent part, as follows:
Paragraph II of the amended complaint sets out and incorporates the acts of negligence alleged in Paragraph I and alleges, in part, "[t]hat by reason of defendant's [appellant's] erection and maintenance of aforesaid embankment and tracks and by reason of defendant's failure to make necessary and proper provisions for the passage of water" a private nuisance was thereby created. To this amended complaint appellant filed a demurrer to Paragraph II thereof, which was overruled.
Appellant then filed an answer in general denial, and a separately filed second paragraph of answer stating, in part, that "the damage as described in plaintiff's complaint was caused solely from an act of God and an unprecendented [unprecedented] downpour of rain within a short length of time, which could not be foreseen nor guarded against by the defendant."
Both, appellant's motion for a directed verdict at the close of appellee's evidence, and appellant's motion for a directed verdict at the close of all the evidence, were overruled. The jury returned a verdict for plaintiff-appellee in the sum of $2,625, plus interest, from the date of the alleged damage. Judgment was entered thereon in the sum of $3,688.13.
Thereafter appellant filed its motion for a new trial, the overruling of which is assigned as error on this appeal.
While appellant's motion for a new trial contains thirty separate grounds, appellant includes only twelve in the argument section of its brief and, therefore, the remaining specifications are waived. Rule 2-17(e) (f), Rules of the Supreme Court, 1964 Revision; Huff, et al. v. Ind. State Hwy. Comm., (1958), 238 Ind. 280, 282, 149 N.E.2d 299; White, et al. v. Lafoon, (1963), 135 Ind.App. 100, 102, 192 N.E.2d 474.
The remaining four of the first five specifications of appellant's motion for a new trial, treated together under Proposition No. 1, as aforesaid, all refer to a remark made by one of plaintiff-appellee's witnesses, upon cross-examination, as follows:
Appellant's motion for a mistrial was overruled, and thereafter the court gave the following admonition to the jury:
In addition to the above admonition the jury was given the following instruction, tendered by appellant:
In Shepard v. Goben (1895), 142 Ind. 318, at page 321, 39 N.E. 506, it is stated:
In many instances, where the trial court has withdrawn or struck evidence improperly admitted, coupled with an instruction admonishing the jury to disregard it, the admission of such improper evidence has been held to be harmless. 2 I.L.E., Appeals, § 622, p. 643.
We hold that any impropriety or prejudice in the statement made by plaintiff-appellee's witness was cured by the trial court's admonition and subsequent instruction to the jury. McPhearson v. State (1966), 247 Ind. 579, 219 N.E.2d 907, 910.
Three separate witnesses placed a value of $800 on plaintiff's garage, and a value of from $250 to $300 on plaintiff's tool shed. Plaintiff testified that she placed a value of $1,500 on her very extensive flower garden, and a value of $20 on a collection of family snapshots. Appellee's son testified to the value of her driveway and fence as being $15 and $150, respectively. All of the above items were shown to have been destroyed or rendered worthless. Appellee's son also estimated the damage to the foundation and basement of appellee's home to have been $300.
From the evidence in the record before us, this court cannot say that the damages were excessive to such degree as to show prejudice or corruption on the part of the jury.
Under Proposition No. 4 in the argument section of its brief, appellant presents the assertion contained in specification number fifteen of its motion for new trial; that the court erred in refusing to give appellant's tendered Instruction No. 3. Appellant, in its brief, sets out three instructions tendered by appellant and refused by the trial court. One of these is appellant's tendered Instruction No. 3. No other instructions are set out in appellant's brief.
As this court stated in the recent case of Pennsylvania Railroad Co. v. Mink (1966), 138 Ind.App. 311, 212 N.E.2d 784, at page 793:
Rule 2-17(d), Rules of the Supreme Court of Indiana, 1964 Revision, provides that when error is predicated on the giving or refusal of instructions, the "statement of the record [in appellant's brief] must contain, in addition to the instructions given or refused which are complained of, all the instructions given or tendered which have a bearing upon the question raised." Even though appellant has possibly waived any error in the refusal to give appellant's tendered Instruction No. 3 by failure to comply with Rule 2-17(d), supra, we are of the opinion that the subject-matter of the refused instruction was clearly covered by the giving of Court's Instruction No. 6.
The refusal to give an instruction is not reversible error where the substance thereof is accurately and adequately covered by other instructions given. N.Y.C. & L.R. Co. v. Merc. Nat'l Bk. (1960), 130 Ind.App. 638, 654, 165 N.E.2d 382 (Transfer denied); Underwood v. Ferguson (1956), 126 Ind.App. 643, 650, 133 N.E.2d 573 (Transfer denied). 28 I.L.E., Trial, § 247, pp. 253-255. F.W. & H., Ind. Tr. and App. Pract., § 1510(5), p. 238.
The remaining propositions, Proposition No. 2 and Proposition No. 5, of the argument section of appellant's brief present and argue the following four specifications of appellant's motion for a new trial.
Appellant's ultimate contention under each of these specifications, insofar as the first paragraph of complaint is concerned, is that the failure to maintain a larger opening through the railroad embankment was not the proximate cause of appellee's damages, and that under the evidence adduced at the trial this was true as a matter of law.
In support of its basic argument appellant advances four separate assertions. Appellant asserts that the failure to maintain a larger opening through its embankment was not the proximate cause of appellee's damages because, 1) had there been a larger opening under the railroad grade, the water would not have backed up south of the grade, but, instead, the entire amount would have flowed through the grade in such volume as to have caused even more damage than actually did result without such a larger opening; 2) the damage was done not by the breaking of the grade, but by the high water prior to the time the grade broke; 3) the damage was caused by an unprecedented downpour of rain within a short length of time which could not be foreseen or guarded against; and 4) the damage was caused solely from an act of God.
The record discloses the following facts most favorable to appellee:
Appellee and her now deceased husband lived in Westfield, Indiana. Their home was located on a lot about 70 feet wide and 125-150 feet deep. The lot fronted on Park Street and ended in the rear at the railroad right-of-way. Along the back of their lot the railroad maintained an embankment or grade approximately 15 feet high which supported railroad tracks running in an east-west direction. The railroad maintained two openings for the passage of water through the
The ground level of the Mikesell home was at an elevation of 876.8 feet, and the level of the first floor was 880.07 feet. The top of the railroad embankment was 883.23 feet or 3.16 feet above the floor level of the home and 6.43 feet above the ground level. The Mikesell backyard sloped downward to where the bottom of the four-foot pipe was at a level 868.7 feet, or 14.53 feet below the top of the grade. The top of Park Street in front of the Mikesell property was at a level of 877.1 feet, or virtually the same as the ground level of the house.
Located immediately northeast of the four-foot railroad grade drain pipe, and under Park Street, was a 6.3 x 3.8 feet corrugated metal pipe to allow for the passage of water under Park Street. The top of this pipe was located 5.6 feet below the level of Park Street. The bottom of the three-foot corrugated tile pipe passing through the grade west of the four-foot pipe was at an elevation of 873.6 feet.
The four-foot round tile and the three-foot corrugated tile totaled 20 square feet of opening through the railroad grade, there being no other openings. The corrugated metal pipe under Park Street had a 19.5 square foot opening.
Appellant argues, hypothetically, that even had there been larger openings through its grade so as to have had more than 20 square feet of opening, appellees damage would have still been suffered due to the inability of the greater amount of water to pass through the 19.5 square foot metal pipe beneath Park Street and a consequent flooding of the Mikesell land.
Appellant also argues, as to actual occurrence, that appellee's damage was due to high water prior to the break. Both of these arguments fail in light of evidence demonstrating the
The foregoing evidence clearly provides a sufficient basis for a finding that a larger opening would not have resulted in damage to appellee's property, and that appellant's hypothetical maintenance of a larger opening is not synoymous
As to specific refutation of the assertion that high water prior to the break was the actual cause of appellee's damages, there was testimony at the trial that the water was just up to the botom of the foundation prior to the break, and was not over Park Street; that water "had been over the flower garden once or twice before, but it had never hurt it, but whenever this embankment broke it washed that cinders and gravel, brick and rocks and everything else in there," and that the flowers were completely destroyed after the break; that the walls of the basement "cracked when the water came up there"; that the garage, tool shed, driveway and fence were all washed away by the force of the water; and that several tons of brick, cinders and gravel remained as residue on the Mikesell's land.
The above evidence, in our opinion, sufficiently supports a finding that appellee's damages resulted in fact from the sudden release of the great volume of water backed up behind the embankment and not from the water which had arisen prior to the washout.
Appellant contends that appellee's damages were caused by an unprecedented downpour of rain within a short length of time which could be neither foreseen nor guarded against.
Even an unprecedented downpour may result in liability, and the mere fact that a rain or flood is unprecedented does not in and of itself determine the issue.
In the case of Watts v. Evansville, etc. R. Co. (1921), 191 Ind. 27, at page 50, 129 N.E. 315, at page 322, involving a railroad embankment washout, is found the following language:
and, further, at pages 52-53 of 191 Ind., page 323 of 129 N.E.:
The general rule, stated in terms specific to situations such as the present one, is that if the rainfall or flood was of such a nature that, in view of all the facts, the exercise of reasonable skill and foresight should have led to its being anticipated there may be liability. If it was of such a nature that it could not reasonably have been expected to occur, proper care, diligence and foresight being exercised, there is no liability. Zollman v. Baltimore, etc. R. Co., supra (1919), 70 Ind.App. 395, 411, 121 N.E. 135; Evansville, etc. R. Co. v. Scott (1917), 67 Ind.App. 121, 149, 114 N.E. 649.
The issue of proximate cause, like negligence, is for the jury where its determination depends on a state of facts from which different minds might reasonably draw different inferences or conclusions, but where the facts are undisputed and where only a single inference or
The evidence as to the probability of the amount of rain which fell, and as to the amount which actually did fall, is conflicting. One witness testified that from four o'clock on Thursday evening until four o'clock on Friday morning, four inches of rain fell; and, further, that from four o'clock on Thursday evening until six o'clock on Friday morning, five inches fell, that until eight o'clock on Friday morning, 5.55-inches fell, and until eleven o'clock on Friday morning, 5.7 inches fell. Another witness testified that from four o'clock on Thursday evening until six o'clock on Friday morning, 5.35-inches fell, and that 5.35-inches in a 14-hour period "would be a frequency of 100 years." A third witness testified that 5.75-inches fell over a 24-hour period, and that "the major effect of the storm was approximately 3 3/4" of rain within a period of 5 hours." This witness further stated that 3.75-inches in four and one-half hours would be "roughly a 25-year frequency — a little bit less," and that four inches in eight hours would be "approximately 20 — less than 20-year frequency."
The evidence is also in conflict as to what, under sound engineering practices and principles, would constitute an adequate and sufficient opening to allow for the passage of water through the railroad embankment. One witness testified that he would make no change in the size of the openings, whereas another witness stated that he would regard 82 1/2 square feet as being a minimum.
Appellant asserts that appellee's damages were caused solely from an an act of God. As stated by this court in Evansville, etc. R. Co. v. Scott, supra (1917), 67 Ind.App. 121, at page 148, 114 N.E. 649, at page 658,
We feel that the evidence was clearly sufficient to support a finding that human negligence was at least a concurrent cause of appellee's damages and, hence, appellant's argument of an "act of God" is without merit.
It is our considered opinion that appellant's specifications numbered 12, 13, 20 and 21, in its motion for a new trial fail to demonstrate reversible error.
It is proper to give the jury a peremptory instruction to find for the defendant "`when there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant.'" State Farm Life Insurance Co. v. Spidel (1964), 246 Ind. 458, 202 N.E.2d 886, 888-889.
Similarly, "[w]e will reverse a verdict and judgment thereon as contrary to law only if the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion." Jackson,
Likewise, under an assignment of error that the verdict is not sustained by sufficient evidence, "[i]f there is any evidence of probative value to support the findings of the trial court, it is the duty of this court to affirm." Haley v. Williams, Trustee etc., et al. (1955), 125 Ind.App. 377, 380, 381, 123 N.E.2d 921.
A review of the evidence in this case reveals ample evidence of probative value to support the verdict of the jury and the action of the trial court in overruling appellant's motions for a directed verdict, and that the verdict was not contrary to law.
On September 17, 1965, appellee filed herein motion to dismiss or affirm. On December 1, 1965, appellee's petition to dismiss was denied and the motion to affirm held in abeyance for opinion on the merits. Appellee's motion to affirm is now overruled.
Finding no reversible error, the judgment of the trial court should be affirmed.
Judgment affirmed.
Carson and Prime, JJ., concur.
Wickens, P.J., not participating.
NOTE. — Opinion on Motion to Discuss or Affirm. Reported in 211 N.E.2d 794, Decision Reported in 221 N.E.2d 192.
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