Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

closed by the bill of exceptions embodying the instructions appeared to be in gross.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 2857.]

2. NEGLIGENCE-ACTIONS-PROVINCE OF JURY

-INVASION.

In an action for injuries to a passenger in a collision between two trains at a crossing, an instructions reciting certain facts and charging that, if the jury found that such facts existed, they constituted negligence, was not objectionable as invading the province of the jury.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 279, 358.]

3. RAILROADS-ACCIDENT TO TRAINS-COLLISIONS-ACTIONS-INSTRUCTIONS.

In an action for injuries to a passenger in a collision between two railroad trains at a crossing, the court charged that if, after the passage of the B. & O. train over the crossing, the flagman so adjusted the signal as to display a white light westwardly along the P. track, and the red light northwardly along the B. & O. track, after which the B. & O. train was backed into the P. train at the crossing, the B. & O. trainmen were guilty of negligence. The court further charged that if, after the B. & O. train had gone to a point of safety north of the crossing, it was backed to the point of collision in violation of the signal "not to cross" by the flagman displaying the red color against it, and that a collision occurred in which plaintiff was injured without his fault, plaintiff was entitled to recover against the B. & O. Company, regardless of whether the P. Company was liable or not. Held, that the latter instruction construed with the former was not erroneous as predicating plaintiff's right to recover on the sole fact of the signal being set against the B. & O. train. 4. SAME-PROVINCE OF JURY.

Plaintiff was injured in a collision between two trains at a crossing. The court charged that the fact that the P. train stopped before reaching the crossing did not justify the opera tives of the B. & O. train in backing to the point of collision in violation of a signal against it, but that the statute made it the duty of the operatives of the P. train so to stop, and that the stop did not authorize the B. & O. operatives to presume that the P. train would remain standing while they were making use of the crossing in violation of the signal. Held, that such instruction was not erroneous as invading the province of the jury on the issue of negligence.

On rehearing. Petition for rehearing overruled.

For former opinion, see 76 N. E. 1015.

WILEY, J. Appellant has petitioned for a rehearing upon the ground that exceptions taken by it to a series of instructions tendered by the Pennsylvania Company-a defendant below-and given by the court, were in gross, and not separate and several, and in holding that as some of them, at least, were correct statements of the law, we could not consider those that appellant claims are erroneous. A several exception to each of such instructions was orally taken, as appears as appears from an orderbook entry, and this being true the exception thus reserved is sufficient, under the act of March 9, 1903, to bring in review on appeal, under a motion for a new trial, such instructions. Such orderbook entry having been inadvertently overlooked, appellant is entitled to have such instructions considered. The statement in the original opinion that the exception was taken in

gross was made from the bill of exceptions imbodying the instructions, wherein it appears that the exception was in gross. The instructions of which appellant complains, of the series given on the motion of the Pennsylvania Company, are 7a, 7b, 7d, 7e, and 7g. Instruction 7 is very lengthy, in the first part of which the court called the attention of the jury to several undisputed facts, and then said: "In the light of these undisputed facts, I instruct you as follows: (a) If the Baltimore & Ohio train had passed over the crossing in going northwardly on the Baltimore & Ohio tracks, and had gone a sufficient distance north of the crossing to allow a clearance for the Pennsylvania train in making use of the crossing; if, after said Baltimore & Ohio train had so gone said distance north of the crossing, said John Ledger, for the purpose of allowing the Pennsylvania train to pass over the crossing, so adjusted said signal as to display the white light westwardly along the Pennsylvania track and the red light northwardly along the Baltimore & Ohio track, and therefore the operatives of said Baltimore & Ohio train caused the same to be backed in the direction of the crossing, and to such proximity of said crossing that it was brought in collision with the Pennsylvania train while such Pennsylvania train was passing over the crossing in compliance with said signal. then I instruct you that the Baltimore & Ohio Company was not in the exercise of ordinary care, but was guilty of negligence. (b) It will not do to say that the operatives on the Baltimore & Ohio train did not see the signal not to cross, if such signal was, in fact, given. It was the duty of the operatives of the train to know that the signal was not against them before the train was backed to the point of collision, and their failure to know this, if the signal was, in fact, properly given, would amount to negligence. (d) Nor will it do to say that the operatives of the Baltimore & Ohio train backed the train to the point of collision after seeing the signal not to cross, if they in fact saw the same. If they did this after seeing the signal they were guilty of negligence. (e) If you find from the evidence that, after the Baltimore & Ohio train had gone to a point of safety north of the crossing, the same was backed to the point of collision. in violation of the signal 'not to cross' given by John Ledger by displaying the red color against the said Baltimore & Ohio train from said system; and that a collision occurred between the Baltimore & Ohio train and the car in which plaintiff was carried as the, result of said backing; and that as a result of said collision, and without fault on plaintiff's part, plaintiff suffered the injuries described in the complaint, or some of them, then I instruct that upon the issue joined between plaintiff and the Baltimore & Ohio Company your verdict should be for the plaintiff, and this will be true without regard to the question as to whether the Pennsylvania Company was guilty of negligence or not. (g) The fact

that the Pennsylvania traîn stopped between Illinois avenue and Broadway, if such be the fact, did not justify the operatives of the Baltimore & Ohio train in proceeding to back to the point of collision in violation of a red light signal displayed by the signal man, if the same was so backed. The statute of this state made it the duty of the operatives of the Pennsylvania train to bring their train to a full stop before passing over the crossing, and the making of the statutory stop would not justify the operatives of the Baltimore & Ohio train in concluding that the Pennsylvania train would remain standing while they were making use of the crossing with the Baltimore & Ohio train in violation of a red-light signal forbidding them to do so."

Those portions of the instruction designated "a" and "b" are objected to because they told the jury that the backing of appellant's train against the signal was, as a matter of law, negligence, and that this was an invasion of the province of the jury. The court simply told the jury that if certain designated facts existed, and established by the evidence, that such facts would constitute negligence. Negligence is oftentimes a mixed question of law and fact. It was the province of the jury to determine the facts, and the court left that question to them, and simply said that if they found such facts to exist, they would constitute negligence. We do not think this was an invasion of the province of the jury, and taking the instruction as a whole, and in connection with other instructions, it was a correct declaration of the law. That part of the instruction designated "d" is not discussed, and is therefore waived. The objection to that part designated "e" is that it selects an isolated fact, to wit, that of the signal being against appellant, and told the jury that if they found such fact to exist, that their verdict should be for the appellee. Construing this part of the instruction in connection with all of it, we do not think it erroneous.

Counsel say that the objections urged to the other parts of the instruction are applicable to that part designated "g," and, further, that "because, in giving it, the court undertook to charge, as a matter of law, the legal effect of certain acts which should have been left to the determination of the jury upon a consideration of all the evidence and circumstances in the case." We do not think the instruction is subject to the objections urged. The petition for a hearing is overruled.

(38 Ind. App. 700)

CARRELL V. MUNCIE, H. & FT. W. RY. CO. (No. 5,544.) (Appellate Court of Indiana, Division No. 1. June 20, 1906.)

1. EMINENT DOMAIN-TAKING LAND FOR STREET RAILROAD-DAMAGES-DEDUCTIONS FOR BENEFITS.

In a proceeding under Burns' Ann. St. 1901. § 5468a et seq., to condemn land for an

interurban street railroad, the fury, in estimating the damages, should not make deductions for benefits accruing to the landowner from the construction and operation of the road.

[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 378-393.] 2. SAME.

In a proceeding under Burns' Ann. St. 1901, § 5468a et seq., to condemn land for an interurban street railroad, the damages to the landowner should be assessed as in case of the appropriation of land for the use of a commercial railroad.

Appeal from Circuit Court, Delaware County; Joseph G. Lefler, Judge. Proceedings by the Muncie, Hartford & Ft. Wayne Railway Company against Samuel S. Carrell to condemn land for a street railroad. From a judgment awarding damages, defendant appeals. Reversed and remanded.

George H. Koons, for appellant. Cantwell & Simmons, for appellee.

BLACK, J. The appellee instituted proceedings for the appropriation of a strip 40 feet in width through agricultural lands of the appellant, for the construction of the appellee's "interurban street railroad," pursuant to the statute of March 11, 1901 (Burns' Ann. St. 1901, § 5468a et seq.).

Among the instructions asked by the appellant which the court below refused to give to the jury was the following: "(5) The court instructs the jury that, in estimating the damages, no deduction shall be made for any benefits that may arise or accrue to the landowner by the location, construction, and operation of the road." Since the trial of this cause, the matter involved in this instruction has been examined by this court, and has been decided contrary to the ruling here questioned. See Indianapolis Northern Traction Co. v. Dunn (Ind. App.) 76 N. E. 269; Indianapolis Northern Traction Co. v. Ramer (Ind. App.) 76 N. E. 808. We do not find any reason for departing from the conclusion reached on this subject in those cases.

The principles and rules for the assessment of damages in such cases are well ascertained and explained in the decisions; and other questions suggested by counsel may, on another trial, present no difficulty, being approached with the understanding that it is the intention of the Legislature that in such cases damages to the landowner should be assessed as in case of the appropriation of land for the use of a commercial railroad company.

Judgment reversed. Cause remanded for a new trial.

(38 Ind. App. 342) EVANSVILLE GAS & ELECTRIC LIGHT CO. v. RALEY. (No. 5,379.) (Appellate Court of Indiana. June 20, 1906.) On rehearing. Overruled.

For former opinion, see 76 N. E. 548.

PER CURIAM. Petition for rehearing overruled.

ROBY, J. (dissenting). The negligence charged in the complaint must be taken as established by the verdict, and the sufficiency of the facts to support it in that behalf is not questioned. It appears from the opinion that the defects complained of, both of which contributed to the injury and both of which were caused by the negligence of a single defendant, were latent and concealed ones. It is entirely well established that the employé is not required to search for latent and concealed dangers of which he has neither actual nor constructive notice. Salem Stone & Lime Co. v. Tepps, 10 Ind. App. 516, 519, 38 N. E. 229. It is also established that an employé assumes risks naturally and ordinarily incident to the service in which he engages. Wortman v. Minich et al., 28 Ind. App. 31, 62 N. E. 85; Lake Shore, etc., Co. v. McCormick, 74 Ind. 440, 445. Danger caused by the master's negligence is not a necessary incident to the service, and the risk arising therefrom is not an assumed incidental one. Barley v. Southern Ind. Ry. Co., 30 Ind. App. 406, 412, 66 N. E. 72. "The risks a servant assumes on entering upon the employment of a master are those only which occur after the due performance by the employer of those duties which the law imposes upon him." Benzing v. Steinway & Sons, 101 N. Y. 547, 5 N. E. 449; Stringham v. Stewart, 100 N. Y. 516, 3 N. E. 575; Pantzar v. Tillie Foster Imp. Co., 99 N. Y. 368, 2 N. E. 24. The employé also assumes risks arising from open and obvious defects. The danger arising therefrom must be either actually or constructively known to him, and he must also be charged with actual or constructive appreciation of the danger out of which the assumed risk arises. Avery v. Nordyke & Marmon Co., 34 Ind. App. 552, 70 N. E. 888. Nothing short of this can form the basis of an implied contract upon which the doctrine of assumed risk depends in this state. Wortman v. Minich et al., supra.

It is said in the opinion that "appellee was in the best position to ascertain the condition of the wires and the pole, but no superficial inspection would have disclosed the defective condition of the pole." This statement is inaccurate as to facts. The appellee had never seen the pole until a moment before he climbed it. He did not know how long it had been in place, or how long the insulation had been upon the wires. climbed the pole by means of a ladder. It does not appear that he ever sank a spur in it until he did so to do the work in the performance of which he was injured. Neither does it appear that there was anything in the resistance made by the pole to the settling of the spur which attracted his attention to its condition. The general verdict offers all inferences for appellee, and this

court cannot say that the fixing of the spur in the pole at that time gave or should have given appellee notice of the rotten condition thereof. The appellee was not in the best position to ascertain the condition of the pole and wires. The rules regulating the respective duties of employer and employé have been so many times declared that it seems superfluous to repeat them. "The appellee was not required to make a special examination or careful investigation to ascertain whether the bent had been negligently or carelessly raised, or whether it was then in a dangerous and unsafe condition, before obeying the command of the master. When directed to do the act in the performance of which he was injured he had the right to assume that the street commissioner, with his superior knowledge of the facts, would not expose him to unnecessary danger." City of Lebanon v. McCoy, 12 Ind. App. 500, 40 N. E. 700; O. & M. Ry. Co. v. Pearcy, 123 Ind. 202, 27 N. E. 479. "If an employé, reposing confidence, as he has a right to, in the prudence and caution of the employer, relies upon the adequacy of the implements put into his hands to work with and upon the safety of the place assigned him to work, and sustains injury in consequence of the failure and neglect of the employer to disclose latent defects or perils, which the latter knew, or which he should have known by the exercise of reasonable diligence, the employé is entitled to remuneration for his loss." Bradbury v. Goodwin, 108 Ind. 286, 9 N. E. 302; Krueger v. Louisville, etc., R. Co., 111 Ind. 51, 11 N. E. 957, and cases cited; Mitchell v. Robinson, 80 Ind. 281, 41 Am. Rep. 812; Boyce v. Fitzpatrick, 80 Ind. 526; Atlas Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798; Indiana Car Co. v. Parker, 100 Ind. 181; Louisville, etc., R. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Pittsburg, etc., R. Co. v. Adams, 105 Ind. 151, 5 N. E. 187; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. 380; Stringham v. Stewart, 100 N. Y. 516, 3 N. E. 575; Pantzar v. Tilly, etc., Co., 99 N. Y. 368, 2 N. E. 24; Bean v. Oceanic Steam Nav. Co. (C. C.) 24 Fed. 124. "It is true that the master is bound to use ordinary care and diligence in providing reasonably safe and suitable machinery and appliances for his servants, and is liable for injuries resulting from his failure to perform this duty. He is also chargeable with notice of the natural tendency of machinery and implements to wear out and decay with use and age, and is therefore required to exercise an active and continuing supervision and vigilance to maintain them in a reasonably safe condition. A servant may rightfully act upon the presumption that the master has performed his duty in supplying proper machinery and appli ances, unless he has notice otherwise, or facts are patent and come within the reasonable range of his observation which would

excite the apprehension of a reasonably cautious person and put him upon inquiry. ** While a servant may have an equal opportunity, he is not bound to make a critical examination of the condition of an implement or item of machinery before using it, to ascertain if it contained any latent defects, unless so required by the terms of his employment." Louisville, etc., Co. v. Berry, 2 Ind. App. 430, 28 N. E. 714; Indiana Car Co. v. Parker, supra; Bradbury v. Goodwin, supra.

In the statement of the opinion that "the exercise of ordinary care upon the part of appellant would have disclosed no more than the exercise of the same degree of care by the appellee," the court usurps the functions of the jury, forgetting that an appellate tribunal is not at liberty to weigh evidence and does not approach the issue as the trial court does, but is bound to take the facts as they have been determined. The opinion also ignores the superior knowledge of appellant and appellee's actual ignorance of the conditions by reason of which he was injured. The character of the defects complained of furnishes the foundation for the conclusion reached by the jury and prevents this court from justly saying, as a matter of law, that it was his duty to have known of the danger to which he was subjected. The master's duty is to furnish a safe place and safe appliances. It requires appellant to take notice of the tendency of wood to decay, and of the effect of exposure upon the perishable material with which it chose to insulate the wires in question. It knew the time during which such process had been going on, and was bound to take notice of them and duly and reasonably guard against them. Appellee was under no duty, as before stated, to search for latent and concealed defects, and had no information tending to put him upon inquiry. He protected himself by means of a safety belt from falling to the ground. A slip, caused by the defective pole, was productive of a painful injury; he thereby being brought in contact with a wire negligently allowed to remain without sufficient insulation. Both causes which contributed to his injury were created by the negligence of a single defendant, and the finding of the fact against such defendant by the jury ought, so far as the question of proximate cause is concerned, to be reasonably safe from the logic of this court. Appellee did not inspect or examine either the pole or insulation upon the wires. He did not known that there was any defect in either, nor how long the pole had been in use, nor how long the insulating material had been upon the wires. The statement in the opinion "that appellee admits that the foreman told him, before he began the work, that he should work the wires as if they were hot," is not an ingenuous way of stating that appellee's attorney asked him upon his original examination the following ques

tion: "Q. Now, what did he say to you, or what was said to you there, if anything, about working the wires? A. Why, Mr. Fisher said to work those wires as if they were hot." It is not suggested by appellant that appellee did not comply with the order thus given. No detail of his procedure is criticised. He unfastened the outside wire and took hold of it with his right hand to push it off of the cross-arm. The wires made an angle at this pole, and considerable force was required to remove it. While exerting such force, the spur on his left foot tore out of the pole, causing him to lose his balance and bringing his left hand in contact with a second wire, thereby forming a short circuit and instantly depriving him of consciousness. Three fingers were burned off of one hand and two off of the other, and he was otherwise injured.

Appellant's negligence formed an element in the injury complained of, and takes the occurrence out of the category of mere accidents. An accident, in the sense in which the term is used, is an occurrence to which human effort does not contribute. "A pure accident, where there is an absence of negligence, will not supply a cause of action; but, where the accident is attributable to the negligence of the defendant, it is otherwise." Nave v. Flack, 90 Ind. 205, 210, 46 Am. Rep. 205. I am convinced that a decision which relieves owners of electric light and other poles of a similar nature from all responsibility in cases of this sort ought not to be made, and that the petition for a rehearing herein should be sustained.

[merged small][merged small][merged small][merged small][merged small][ocr errors]

Where, in a suit to quiet title, plaintiff was granted a statutory new trial, it was the duty of the court to vacate the original judgment of record.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, § 364.] 2. APPEAL - PLEADINGS MENT ON APPEAL.

[ocr errors]

DEFECTS-AMEND

Where a defect in a complaint sought to be taken advantage of by demurrer was one which might have been cured by amendment in the trial court, it would be deemed to have been so cured by amendment on appeal, as provided by Burns' Ann. St. 1901, § 670.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3621, 3622.] 3. SAME ASSIGNMENTS OF ERROR.

Where a demurrer was directed to plaintiff's complaint, and was overruled, an assignment of error challenging the action of the court in overruling the demurrer to the first paragraph of the "amended complaint" was unavailable.

4. PLEADING ANSWER-DEMURRER.

Where all the facts averred in a special paragraph of the answer were admissible under the general denial pleaded. the sustaining of the demurrer to such paragraph was not error.

5. NEW TRIAL-MOTION-FILING-TIME.

Under a statute authorizing the filing of a motion for a new trial at any time during the term or on the first day of the succeeding term, if the verdict or decision is rendered on the last day of any term, a motion for a new trial, filed in vacation in a case in which the judgment was rendered on April 28th at a term which did not close until the 30th, was too late.

Appeal from Circuit Court, Perry County; C. W. Cook, Judge.

Action by James A. Stephenson, Sr., and others against Irene Richardson and others, to quiet title and for partition. A judgment was rendered in favor of defendants, quieting title in them, and within a year plaintiff, Stephenson, filed a bond for a statutory new trial. From a judgment for plaintiff, defendants appeal. Affirmed.

John H. Weathers and Philip Zoercher, for appellants. John W. Ewing and Sol. H. Esary, for appellee.

ROBY, J. This action was brought by appellees to quiet title to a strip of ground claimed by virtue of a division made by the owners of a certain tract of land 20 years prior to its commencement. The action was instituted against appellant and her husband. The original complaint was in two paragraphs, one to quiet title and the other for partition. The defendants filed an answer to both paragraphs, setting up ownership of the land in dispute and asking to have their title thereto quieted. A trial was had which resulted in a finding and judgment for appellant and her husband. Within a year from date of judgment, appellee filed a bond for a new trial, as of right under the statute, which new trial, over the objection of appellant, was had. Pending the second trial her husband and codefendant died, and the case proceeded against the appellant upon the amended complaint, upon which issues were formed and a trial had, resulting in a finding and judgment for appellee, from which judgment this appeal is taken.

No record entry was made vacating the prior judgment. The court had, however, no discretion but to grant a new trial and vacate the judgment, upon the steps set out by statute having been taken. Anderson v. Anderson, 128 Ind. 254, 27 N. E. 724. It appearing that a new trial was in fact granted and had, a formal record thereof should have been made to conform to the fact, and the circuit court is therefore directed to make such record. Harris v. Curtis, 34 Ind. 'App. 438, 440, 72 N. E. 1102; Merom Gravel Road Co. v. Pearson, 33 Ind. App. 174, 69 N. E. 694, 71 N. E. 54.

The third assignment challenges the action of the court on overruling appellee's demurrer to the first paragraph of amended complaint. The defect pointed out is the one which might have been amended by the court below, and will therefore be deemed to be amended in this court. Section 670, Burns' Ann. St. 1901. The demurrer was 78 N.E.-17

directed to the plaintiff's complaint, for which reason the assignment does not present a question. The same is true of the demurrer to the second paragraph of complaint and the fourth assignment of error. There was no error in sustaining appellee's demurrer to appellant's third paragraph of answer, all the facts therein averred being admissible under the general denial. Watson v. Lecklider, 147 Ind. 395, 45 N. E. 72.

The appellant's motion for a new trial was filed June 29th, in vacation. The judgment appealed from was rendered on April 28th and the term closed on April 30th. The

statute provides that a motion may be made at any time during the term at which the verdict or decision is rendered, and if such verdict or decision is rendered on the last day of any term, that a motion may be filed on the first day of the next term of court. The judgment appealed from was not rendered on the last day of the term, and the motion was not, therefore, made in time. Dugdale v. Doney, 30 Ind. App. 240, 65 N. E. 934.

A review of the evidence leads to the belief that the conclusion reached was the correct one upon the evidence. Judgment affirmed.

(39 Ind. App. 42) GOODING v. STATE ex rel. McGILL. (No. 5,641.)*

(Appellate Court of Indiana, Division No. 1. June 21, 1906.)

1. BASTARDY-NATURE OF PROCECUTION. A bastardy proceeding is a civil action. [Ed. Note. For cases in point, see vol. 6, Cent. Dig. Bastards, § 352.]

2. SAME-FORM OF PROCEEDINGS.

Bastardy proceedings must originate before a justice of the peace, and be prosecuted in the name of the state for the benefit of the illegitimate child.

[Ed. Note. For cases in point, see vol. 6, Cent. Dig. Bastards, §§ 35, 79, 84.]

[ocr errors]

3. SAME PRIOR JUDGMENT EFFECT-PROCEEDINGS FRAUDULENTLY INSTITUTED.

-

Burns' Ann. St. 1901, § 1006, provides that, in bastardy proceedings, prosecuting witness, if she be an adult, may dismiss the suit at any time by entering an admission that satisfactory provision has been made for the maintenance of the child. A bastardy proceeding was instituted at the instance of the putative father, without the knowledge of the mother or the prosecuting attorney. Afterward, by false representations that she was merely signing a receipt for a small sum of money advanced her by the father, the mother was induced to sign an acknowledgement that provision had been made for the child, and the proceeding was dismissed. Held, that the state was not really a party to the proceedings, so that the judgment was not rendered in an adversary proceeding, and was not a bar to another proceeding.

[Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bastards, §§ 45-57.]

4. SAME-RETURN OF MONEY PAID.

The payment by defendant was a voluntary one, and it was not necessary to return or offer to return it before commencing another proceed. ing.

[blocks in formation]
« ΠροηγούμενηΣυνέχεια »