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witness must have reference to the exact time at which he testified; that no definite time has been fixed, or can be fixed, within which the evidence must be confined; that the question for the jury relates to his credibility at the time he testified, but it is competent to give evidence of his character within a reasonable time before the trial; that the testimony in such cases will bear more or less strongly upon the present character of the impeached witness, according to the nearness or remoteness of the time to which it relates; and that the period within which the inquiry should be confined is probably, to some extent, at least, in the discretion of the court. There has been some diversity in the decisions as to the latitude allowable in this regard. In the case last cited the state had introduced evidence that the character of the impeached witness was good at the time of the trial, which it was said was not contradicted, though he had been impeached by evidence of statements made out of court in conflict with his testimony. It was held not error to receive testimony that the character of the impeached witness was good two years before the trial, in another neighborhood than that in which he had resided during the last preceding two years. In Rucker v. Beaty, 3 Ind. 70, where the trial court had excluded testimony offered by the defendant relating to the character of a witness for the plaintiff at a time five years before the trial, it was said by the court on appeal: "If he showed it to be bad at the time of the trial, we do not see that there was any objection to his also showing it to have been always bad, except the time that would have been consumed in the examination. That time the court was not bound to waste." In Railway Co. v. Richardson, 66 Ind. 43, 32 Am. Rep. 94, the trial court had refused to admit evidence of the general character for truth of a witness in New Albany, Ind., who had resided for about six weeks before the trial at Elizabethtown, Ky., where his deposition was taken, he having resided up to that time at New Albany; the ground for refusal being that the residence of the deponent was at Elizabethtown. This, on appeal, was held to be error. See, also, Packet Co. v. McCool, 83 Ind. 392, 43 Am. Rep. 71; Pape v. Wright, 116 Ind. 502, 19 N. E. 459; Sage v. State, 127 Ind. 15, 26 N. E. 667; Hauk v. State, 148 Ind. 238-261, 46 N. E. 127, 47 N. E. 465; Thrawley v. State, 153 Ind. 375, 55 N. E. 95; Houk v. Branson, 17 Ind. App. 119, 45 N. E. 78; Gillett, Ind. & Col. Ev. § 95. Taking into consideration the discretion lodged in the trial court in the admission or rejection of such evidence, and the fact that there was already evidence on behalf of appellee that the character of the witness was good at the time of the trial in the neighborhood where he then resided, and also the long and extensive acquaintance of the witnesses French and Freeman in the neighborhood in which they had known the witness Hutton, we think, that,

under the authorities, we would not be warranted in interfering with the action of the trial court.

Judgment affirmed.

(29 Ind. App. 456)

BAKER v. HANCOCK. (Appellate Court of Indiana. May 23, 1902.) PHYSICIANS-DEGREE OF SKILL REQUIREDMALPRACTICE-EVIDENCE.

1. The question when a physician becomes a specialist is not one of law, but one of fact primarily for his own determination; but, when he holds himself out as a specialist, it be comes his duty to use that degree of skill which such a practitioner of necessity should possess.

2. In an action for malpractice defendant's testimony as to the successful treatment of other patients by him for the same disease was inadmissible.

Robinson and Wiley, JJ., dissenting.

On petition for rehearing.

Overruled.

For former opinion, see 63 N. E. 323.

Asa Elliott and M. B. Hottel, for appellant. W. T. Brannaman and O. H. Montgomery, for appellee.

ROBY, J. After stating that "a physician is a physician whenever he acquires sufficient learning to be intrusted by the proper legal authorities with a legal license to practice medicine, and it is actually practiced,' the appellee's attorneys, in their brief upon this petition, inquire, "When is a specialist a specialist?" The question is not one of law; it is a question of fact. The appellee may or may not have qualified himself as a specialist. Whether he had done so was a matter within his own knowledge, and primarily for his own determination. Having arrived at the conclusion that he possessed such qualification, it still remained optional with him as to whether he would hold himself out and receive and treat patients upon the basis of it. When he determines to do this and does it, it then becomes his duty to exercise that degree of skill which he thereby represented himself as possessing. To relieve one practicing medicine under such circumstances of responsibilities commensurate with the pretension by which patients are secured and compensation fixed, would be to give ignorant practitioners license to defraud and to place innocent patients at their mercy. The definition of the noun "specialist," as given in the Standard Dictionary, was followed in the opinion. It is said in that work to mean "more especially a physician or surgeon who applies himself to the study and practice of some particular branch of his profession." The thing on account of which appellant sought to recover damages was the alleged negligent destruction of part of his nose. Two paragraphs of the complaint proceed upon the theory that appellee held himself out as a specialist. If, so holding himself out, he undertook to diagnose and treat appellant's case as coming within the spe

cialty so practiced by him, he was bound to use that degree of skill which such practitioner of necessity should possess. It became his duty to give every patient to whom he undertook in that capacity to render service the benefit of that reasonable skill exacted by the law from one thus engaged.

It is argued further that in holding testlmony as to the treatment of other patients incompetent, this court omitted to consider the "connecting link or sameness." In this counsel are mistaken. The only sameness between the cases alleged to have been cured and that of appellant, so far as shown, was the remedy used by appellee.

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PER CURIAM. No new reasons are advanced in appellant's petition for a rehearing why the judgment in this cause should be reversed. The motion to make more specific is not in any proper way a part of the record, so that no question is raised upon the action of the trial court in overruling this motion. The complaint is sufficient. charges the appellant with negligently permitting the fire to escape from its premises. It avers that appellee was without fault. Upon these averments the evidence went to the jury, and the jury, by its general verdict, decided both issues in favor of appellee. The evidence was sufficient upon which the verdict and judgment could legally rest, and the general verdict and facts specially found are not irreconcilable.

The petition for a rehearing is overruled.

(30 Ind. App. 3) HESCH. BOLIN et al. 1 (Appellate Court of Indiana, Division No. 1 May 22, 1902.)

APPEAL BILL OF EXCEPTIONS-CLERK'S CERTIFICATE-FAILURE TO SEAL. Where the clerk's certificate attached to the transcript following the bill of exceptions containing the evidence does not bear the seal of the trial court, such certificate is of no effect, and the evidence is not in the record.

Rehearing denied.

Appeal from circuit court, St. Joseph county; W. A. Funk, Judge.

Action by Katharina Hesch against Jennette Bolin and others. From a judgment for defendants, plaintiff appeals. Affirmed.

T. E. Howard, J. G. Orr, and E. A. Howard, for appellant. F. J. Lewis Meyer, for appellees.

HENLEY, J. This was an action to quiet title. Issues were made, and trial had. Judgment in favor of appellees. The one question presented in this court arises upon the action of the trial court in overruling appellant's motion for a new trial. Under this assignment of error the only question discussed relates to the sufficiency of the evidence to sustain the finding and judgment. Counsel for appellees contend that the question raised cannot be considered, because the bill of exceptions, which contains the evidence, is not properly in the record, and cite in support of their position Johnson v. Johnson (Ind. Sup.) 60 N. E. 451, in which the supreme court, by Monks, J., said, after holding that the bill of exceptions was not in the record for another reason: "The bill of exceptions is not in the record, and cannot be considered, for another reason. After the general certificate of the clerk that the 'transcript contains true and complete copies of all the papers and order-book entries in the cause,' there is attached to the transcript what purports to be an original bill of exceptions, containing the evidence. Two special certificates of the clerk of the trial court are attached at the close of the original bill of exceptions, containing the evidence, but the seal of the trial court is not affixed to either of said certificates. Without such seal, said certificates are of no effect for any pur pose." See, also, Savings Union v. Byrd, 154 Ind. 47, 55 N. E. 867; Carpenter v. Schaeffer, 154 Ind. 694, 57 N. E. 105; Board of Com'rs of Monroe Co. v. State (Ind. Sup.) 60 N. E. 344. In the case at bar the certificate of the clerk attached to the transcript follows the bill of exceptions, but it does not have affixed to it the seal of the trial court. Under the authorities cited, the bill of exceptions is not properly in the record, and the errors complained of by appellant are therefore not presented. Judgment affirmed.

(28 Ind. App. 588)

PITTSBURGH, C., C. & ST. L. RY. CO. v. GRAY.*

(Appellate Court of Indiana. April 4, 1902.)

PLEADING SUFFICIENCY-PASSENGER-JUMPING FROM TRAIN-CONTRIBUTORY NEGLIGENCE-ADVICE OF BRAKEMAN-FINDINGS OF FACT-GENERAL VERDICT-CONCLUSIONS. 1. The complaint in an action against a railroad for personal injuries alleged that the brakeman advised and assisted the passenger to alight from a moving train, and that it was the duty of the brakeman to assist passengers

*See 73 N. E. 620.

in safely alighting. Held, that the complaint sufficiently alleged that the brakeman was acting within the scope of his employment.

2. A passenger started to get off a train as soon as it stopped at his destination, but before he could alight the train started up again. He stepped from the platform while the train was in motion, and was injured. Held, that he was still a passenger at the time he stepped from the platform.

3. The fact that a passenger attempted to alight from a slowly moving train, and received injuries in so doing, did not necessarily render him guilty of contributory negligence.

4. In an action to recover for injuries received in getting off a moving train, it was specially found that plaintiff, although an old man, was acquainted with the train and a frequent traveler. When the train stopped at his destination he started to get off, but at the door met an incoming passenger, with whom he talked until the train started. The train was started by the conductor after all the passengers had apparently gotten off, and he was not aware that plaintiff had not alighted. The brakeman asked him if he intended to get off, and said, "You wil. have to be quick about it; step off with the train." Plaintiff stepped off, the brakeman steadying him with his hand, and fell after he stepped from the platform. The jury, upon these facts, found as a conclusion that the brakeman had requested plaintiff to alight while the train was in motion, and returned a general verdict for him. Held that, as the conclusion and the findings of fact were at variance, the conclusion should have been disregarded; and, the general verdict for plaintiff being contrary to the findings of fact, defendant's motion for judgment non obstante veredicto should have been sustained.

5. A passenger who had been carried to his destination, and had been given ample time to alight, stayed on the train to talk with some one he met. When the train started up he attempted to get off, and was advised by the brakeman to be quick, and step off with the train. The movement of the train was suddenly accelerated, and the passenger was injured when he stepped from the platform. He stepped off voluntarily. Held, that he was guilty of contributory negligence.

Robinson, J., dissenting.

Appeal from circuit court, Cass county; Dudley H. Chase, Judge.

Action by Samuel Gray against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff and the overruling of defendant's motion for judgment non obstante veredicto, defendant appeals. Reversed.

John L. Rupe and G. E. Ross, for appellant. Blacklidge, Shirley & Wolf, Nelson & Myers, and Joseph P. Gray, for appellee.

WILEY, J. Appellee was injured while alighting from one of appellant's passenger trains, and prosecuted an action against it for damages. His complaint vas in three paragraphs. The first paragraph avers that appellee took passage on one of appellant's trains at Logansport, to go to Galveston, and paid the regular fare to said last-named station; that when the train stopped at Galveston he arose from his seat, and passed out of the car, where he was riding, onto the platform, for the purpose of getting off; that when he was about to descend the car steps appel

lant's agent in charge of the train negligently caused the same to start suddenly, and that one of the brakemen in charge negligently ordered and directed the plaintiff to leave the train while in motion, and took hold of his arm, led him across the platform and down the steps, and encouraged, advised, directed, and commanded him to get off; that appellee was about 70 years old; that he was somewhat confused by the sudden starting of the train and the conduct of the brakeman, as described; that he relied upon the brakeman's directions, and stepped from the train while it was in motion. It is also charged that one of the duties of the brakeman was to look after the safe debarkation of passengers; that appellee knew that the train was moving slightly, but that on account of his age, his imperfect eyesight, and his confusion caused by the sudden starting of the train, and the brakeman's conduct, and being unfamiliar with the movement of trains, and unable to estimate the speed, he believed that the motion of the train was not so great as to make his debarkation dangerous; that the train stopped a very brief time, wholly insufficient, in view of appellee's age, to enable him to alight safely; that the brakeman saw him in the act of leaving the train when the same was put in motion, and might have stopped it by pulling the bell cord, before it had acquired any considerable motion, but that he negligently failed and refused to do so, or in any manner signal the engineer to hold the train until appellee could alight; that when he had descended the steps, and was in the act of stepping from the same, in obedience to the brakeman's order, and when he advanced too far to retreat, the speed was suddenly very much accelerated, whereby in alighting, and while in the exercise of due care, he was thrown upon the platform and seriously injured. The complaint further avers that said injury was caused without any fault or negligence on his part, but wholly on account of the negligence and fault of appellant. The second and fourth paragraphs of complaint contain all the material averments of the first, differing therefrom only that they do not charge that the train did not stop a sufficient length of time for appellee to debark. Demurrers to each of these paragraphs of complaint were overruled. The cause was put at issue by an answer in denial. Trial by jury resulting in a general verdict for appellee. With the general verdict the jury found specially by way of answers to interrogatories. Appellant moved for a new trial, for judgment on the answers to interrogatories, and in arrest of judgment.

By the assignment of errors, all the rulings of the trial court to which reference is made are brought in review.

As against the sufficiency of the complaint, it is urged that the facts pleaded do not show that the brakeman was at the time acting within the line of his duty and scope of his employment. We do not think this position

can be successfully maintained. Summarized, the acts of negligence charged against appellant are that the brakeman advised, commanded, directed, ordered, and assisted appellee to alight while the train was in motion, and at a time when he must have known it was dangerous, and suddenly starting and increasing the speed of the train when appellee was in the act of debarking. In addition to this, in the first paragraph, the further act of negligence is charged that the train did not stop a sufficient length of time for appellee, on account of his age, to alight. It is charged that one of the duties of the brakeman was to assist passengers in safely alighting from the train. This is an averment of an issuable fact, and it necessarily follows, as a matter of pleading, that when the brakeman was directing, assisting, commanding, and advising appellee to alight he was acting within the line of his duty and scope of his employment. This conclusion is in harmony with the rule declared in Railway Co. v. Savage, 110 Ind. 156, 9 N. E. 85.

It is also urged that at the time appellee attempted to alight from the train the relation of carrier and passenger did not exist between him and appellant, and hence appellant did not owe to him the duty of a carrier to a passenger. This position is not tenable. Up to the time appellee reached the station where he desired to debark he certainly was a passenger. He rightfully entered the train, paid his fare, and had done nothing to sever the relation of carrier and passenger. So far as the complaint shows, he had made every reasonable effort to alight before the train started. If he had not left his seat in the car, and the train had proceeded on its way, he would still have been a passenger, and by paying his fare to the next station, or any station, appellant would have been required to carry him safely. Ordinarily, where a person becomes a passenger on a train, pays his fare, and conducts himself in an orderly and proper manner, he remains a passenger until he safely debarks therefrom. In this case, as shown by the complaint, appellant recognized appellee as a passenger; for its servant, as shown by the complaint, advised, directed, assisted, and commanded him to alight. The relation of carrier and passenger exists where the passenger, carelessly or inadvertently, takes the wrong train, or where a person enters a car to assist a member of his family or some one in his charge. Railroad Co. v. Athon, 6 Ind. App. 297, 33 N. E. 469, 51 Am. St. Rep. 303; Railroad Co. v. Mushrush, 11 Ind. App. 192, 37 N. E. 954, 38 N. E. 871; Railroad Co. v. Carper, 112 Ind. 26, 13 N. E. 122, 14 N. E. 352, 2 Am. St. Rep. 144; Railroad Co. v. Crunk, 119 Ind. 542, 21 N. E. 31, 12 Am. St. Rep. 443. In the Costello Case, 9 Ind. App. 462, 36 N. E. 299, the train stopped three minutes, and other passengers got on and off. Costello was a passenger, and the train had stopped a sufficient length of time to enable him to alight, and while he was

alighting the train was started and he was injured. It was held that he could not recover, for it was shown that he had sufficient time to alight, and that the company's servant did not know he was attempting to alight when they started the train. In the case we are now considering, the complaint does not show how long the train stopped at Galveston, but it does show that as soon as it did stop appellee started to alight. Under these facts, he was still a passenger, and appellant owed to him the duties of a passenger.

It is further urged that the complaint is bad because it shows that appellee was guilty of negligence in attempting to alight from the train when it was in motion. It does not necessarily follow because a passenger attempts to alight from a slowly moving train that he is guilty of contributory negligence, for such act is not negligence per se. This rule is declared in many cases. Railroad Co. v. Crunk, supra; Railroad Co. v. Carper, supra; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N. E. 973, 7 L. R. A. 687, 18 Am. St. Rep. 330; Railroad Co. v. Bean, 9 Ind. App. 240, 36 N. E. 443. The demurrers to the several paragraphs of complaint were properly overruled.

We proceed next to consider the overruling of appellant's motion for judgment on the answers to interrogatories non obstante veredicto. A correct determination of the question thus raised depends upon the facts specially found. The facts upon which the ruling must be measured are as follows: Appellee was 67 years old. The day he was injured was clear and pleasant. He was in full possession of his sight and hearing. He lived at Galveston, and was acquainted with the trains passing there, and was a frequent traveler thereon. When the train reached Galveston, it stopped to let passengers off and on, and appellee knew that it had so stopped. The train stopped long enough to allow all passengers desiring to do so to get on and off. The train stopped as long as usual. Several passengers got on and off the train before it started, without difficulty. The train was started upon a signal from the conductor after all baggage and express matter had been disposed of, and after all pas sengers, apparently to the conductor and brakeman, had gotten off. When the conductor started the train he did not know that appellee had not alighted therefrom. When the train stopped appellee arose from his seat, and walked to the rear door of the smoking car, where he met a Mr. Tyner, a passenger who came on board at Galveston, and talked with him till the train started, and about the time he came to the door he met the brakeman. At or about the time appellee came to the car door the brakeman asked him if he intended to get off, to which he replied, "Of course," or "Certainly." That the brakeman said, "You will have to be quick about it; step off with the train." That the appellee passed by the brakeman,

and stepped off, the latter steadying him with his hand, and appellee fell after he stepped upon the platform. That appellee knew the train was in motion when he came out of the car on the platform. That he fell and received his injury by reason of his stepping on the depot platform while the train was in motion. That there was nothing to impede or hinder appellee from promptly and safely leaving the train while it was standing at the station platform, except his voluntarily stopping to talk to Mr. Tyner. That the reason appellee did not get off the train when it stopped was because he stopped to talk to Mr. Tyner. That if appellee had remained on the train after it started, instead of attempting to get off, he would not have been in any peril. Interrogatory 20 and answer are as follows: "No. 20. Was there any other reason for plaintiff getting off the train after it started to leave the station of Galveston than that he resided there, and did not wish to be carried to the next station? Answer. Yes; by request of brakeman." It is also found that the conductor did not give any order to the brakeman to advise appellee or to order or direct him to leave the train while it was in motion. Interrogatory 23 and answer are as follows: "No. 23. Did the plaintiff say anything to the defendant's brakeman, or the brakeman to him, except that brakeman asked plaintiff if he intended to get off there, or if he wanted to get off there, and upon his replying, 'Yes,' or 'Certainly,' the brakeman replied, 'You will have to be quick about it; step with the train,'-were these all the words that passed between them? Answer. Yes." By the answer to the twenty-fourth interrogatory it is found that all the brakeman did toward the appellee, as he attempted to get off, was to put his hand upon him as he passed down the steps, to steady and assist him to get off safely. It is quite clear to our minds that the answers to interrogatories, or, more correctly speaking, the facts specially found, make a case sharply distinguished from the case made by the complaint. By bolding the complaint good against the assault of a demurrer, we necessarily held that the complaint stated facts showing actionable negligence on the part of appellant, and a freedom of contributory negligence on the part of appellee. In the first paragraph the alleged negligence of appellant consisted in not stopping the train long enough for appellee to leave it in safety; also the conduct of appellant's brakeman in directing, commanding, advising, and assisting appellee to leave the train when it was in motion, and suddenly increasing the speed of the train when he was in the act of leaving. The other two paragraphs charge the same acts of negligence, omitting to charge that the train did not stop long enough to enable him to leave it in safety. All the evidence and the answers to interrogatories show that it was the purpose of appellee to leave the train at Gal

veston. He started out of the car with that intention. When he met the brakeman on the platform he told him he was going to get off there. The brakeman did not command him to get off, nor advise him that he could get off in safety. He was acting on his own judgment and carrying out his own plans, deliberately formed.

All that passed between appellee and the brakeman, as the former was leaving the train, is fairly stated in interrogatory 23 and the answer thereto, which are above set out in full. In brief, this is what occurred between them: The brakeman, when he met appellee, asked him if he was going to get off at Galveston. The latter said, "Yes," or "Certainly." The brakeman replied that he would have to be quick about it, and that he should step with the train. We are unable to construe anything that was said by the brakeman to appellee as a command or direction for him to leave the train. From what appellee told the brakeman, and his conduct, the latter was fully informed that the former intended to leave the train at that point. He did not even request the brakeman to stop the train. He was acting upon his own judgment, and was intent in carrying out that judgment. When the brakeman saw that he was determined to leave the train, he merely directed him how to get off in safety. It appears from the answers to interrogatories that appellee was familiar with the trains and a frequent traveler thereon. It is clear that he did not seek any advice from the brakeman, nor was he in any way influenced by what the brakeman said, for he simply did that which he was intending all the time to do. It follows from this and from all that was said and done that the answer of the jury to interrogatory 20, that appellee got off at the request of the brakeman, is a mere conclusion. All that the brakeman said to the appellee cannot be construed as a command or order, but as advice or direction as to the best manner of his getting off. The most liberal construction that can be given to the statement is that he attempted to observe the direction of the brakeman in the manner of his getting off, and not that he got off because he advised or directed him to do so. In this case the appellee's account of what was said and done between him and the brakeman will be found to be in exact harmony with interrogatory 23 and the answer thereto. There is no substantial difference between the appellee and the brakeman as to what was said between them. In the account given by each of them, there was nothing like a request or command from the brakeman.

So we have had a special finding of the exact facts as disclosed by the evidence and a statement of a conclusion drawn by the jury in answer to interrogatory 20 which are at variance; that is, the conclusion of the jury is at variance with the facts found. In such case the conclusion must be disregarded, for

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