Page:Lin-Brook Builders Hardware v. Gertler.pdf/1

  on the railroad’s contention that the lower court was correct in holding that the required signals were given because there was no conflict between plaintiff’s witnesses’ testimony that they heard no signals and the railroad’s witnesses’ testimony that they heard signals by bell and whistle, it was stated: “While negative evidence may not have the same probative value as positive evidence, it is usually the only method of proving the failure of a railway company to give signals and, in such a case as this, is evidence which the jury may properly weigh and consider, together with positive evidence, if any, to the contrary, in determining whether such signals were given.” 24 N.E.2d at 409. In Callahan v. New York Central Railroad Co., 125 Ind.App. 631, 125 N.E.2d 263, 267 (1955), the Indiana Appellate Court also reversed a directed verdict for the defendant-railroad, holding inter alia that the testimony of a witness that he did not hear any bell constitutes negative evidence which the jury may properly weigh and consider, and which “may or may not have the same probative value as positive evidence,” and approved the “general rule that the testimony of one who is near a crossing and in a situation to have heard the whistle, that he did not hear it, is generally sufficient to support the inference that such a warning signal was not given.” The question of the credit to be given to the testimony of the witnesses, measured by their opportunity to observe, and their attention and credibility, was for the jury, in our opinion.

There was sufficient evidence to support the verdicts on this one question of negligence, and this is enough to sustain the judgments. Ricks v. Emery, 134 Ind.App. 182, 185 N.E.2d 546, 548 (1962). We do not reach the contention made with respect to the alleged violation of the crossing sign statute.

We see no merit in the contention that the judgments must be reversed because of the alleged inconsistency between the verdicts against Pauline Simon as administratrix in the death actions, and for her individually. We are not persuaded that the verdicts in the death cases resulted from finding the Railroad not negligent. The district court fully instructed the jury, without objection, upon the duty of care which the law imposes on the driver of the automobile and its adult passenger, and that Pauline Simon could not recover in the death actions if “Mr. and Mrs. Boyd” were guilty of any negligence which proximately contributed to the collision and their resulting deaths; also that the minor passenger could not be charged with any contributory negligence. Thus the jury could have decided, without inconsistency, that the driver, Cosie Boyd, was negligent in proceeding as he did onto the tracks, and that his wife, Lola, did not warn him of the danger of which she must have, or should have, known; and that therefore the negligence of the Boyds precluded recovery in the death actions even though the Railroad was negligent. This question was not in issue as to Eldridge Simon, and Pauline Simon’s individual recovery depended upon the judgment for her son.

Accordingly, the judgments are affirmed.