The Pittsburgh, Cincinnati and St. Louis Railway Co. v. Hume. plaint, and a general denial thereof filed, there was a trial by the court and finding again for the plaintiff. The defendant moved the court for a new trial for the following reasons: first, the finding of the court is contrary to law; second, the finding of the court is not sustained by, and is contrary to, the evidence in the case. This motion was overruled by the court, and final judgment was rendered, from which the defendant appealed to this court. The evidence is made part of the record by a bill of exceptions, and shows the following facts: The sow and pigs were killed at or near the crossing of a public highway. The witnesses differ in their statements as to whether it was at the crossing or near to the same. The train was going west. There was a cow-pit across the railroad track on each side of the highway. Miles Cook, on behalf of the plaintiff, says, he was trying to drive the stock off the track, when he saw the train coming from the east. Where the stock were on the track it was not fenced on the south side, for a distance of two hundred yards, the fence being down. When he found he could not succeed in driving the stock from the track, he climbed up on the bank, until the train passed. The engine struck the animals east of the east cow-pit. He saw them struck; found one pig dead in the east cow-pit, the sow and three pigs between the east cow-pit and the place where the county road crosses the railroad track. The cow-pit on the east side of the road was so nearly filled with dirt that it was not more than a foot deep. James McCorkle testified, that he passed by soon after the Occurrence, saw a sow and six pigs killed, one pig was in the east cow-pit, four more between the cow-pits, and two pigs were dropped two rods west of the west cow-pit. On behalf of the defendant, one witness, Michael Foley, says he saw the hogs on the crossing shortly before the train came along; did not see the cars strike them. On being told of the occurrence, he went to the place, and found the sow The Pittsburgh, Cincinnati and St. Louis Railway Co. v. Hume. and three pigs killed between the cattle-guards, thrown on each side of the railroad track right where the dirt road, which is a county road, crosses the railroad. Two of the pigs were carried by the cars west of the west cattle-guard. There was blood all along from where they were struck. From appearances, thinks they were all struck west of the east cattle-guard, between the two cattle-guards, on the dirt road crossing. Examined the railroad track east of the cattle-guard, and found no hog tracks, no blood, or any signs of hogs having been struck east of the east cattle-guard. There was no pig in the east cattle-guard. Daniel Burk and John Laisy, witnesses for the defendant, went with Foley, and describe the position of the dead animals and the appearances in the same way as Foley did. It is at once evident that there is no such state of evidence here as will justify us in saying that the common pleas erred in refusing to grant a new trial. The witness Cook seems, of all of them, to have had the best opportunity to know exactly how and where the killing took place. The other witnesses speak only of appearances after the event occured. According to the testimony of Cook, the hogs when struck by the locomotive were on the railroad track, east of the east cow-pit. Had the road been fenced, and the cow-pit been in good condition, it seems to us that the hogs would not have been at this point on the road. Had the evidence established the fact that the hogs were at the crossing of the public highway, when killed, the defendant would not have been liable, except for negligence. The judgment is affirmed, with ten per cent. damages and costs. H. C. Newcomb, F. L. Mitchell, and W. A. Ketcham, for appellant. H. F. Dunbar, fòr appellee. The Otter Creek Block Coal Company v. Raney. THE COLUMBUS, CHICAGO AND INDIANA CENTRAL RAILROAD COMPANY V. STARR. APPEAL from the Henry Circuit Court. PETTIT, C. J.-Appellee brought suit against appellant for killing stock by its train of cars, before a justice of the peace. Default, trial, and judgment for appellee; appeal to the circuit court; amendment of complaint; demurrer to it overruled, and exception. This ruling was right. The complaint was in the usual and proper form, and alleged that the killing was at a point where the road was not properly fenced. Trial by the court, finding and judgment for appellee. The evidence is all in the record, and not only justified the finding and judgment, but clearly required the action of the circuit court as it was given. Judgment affirmed, with ten per cent. damages and costs. 7. H. Mellett and M. E. Forkner, for appellant. W. Grose and T. B. Redding, for appellee. THE OTTER Creek Block Coal ComPANY v. RaneY. PRACTICE.-Interrogatories to Jury.—Withdrawal of.-Where particular questions of fact pertinent to the issues and not liable to be rejected as a whole on account of any objection to the character of the interrogatories in which they are embraced have been submitted to the jury, at the request of a party, and without objection from the adverse party, with the proper instruction to the jury in reference to finding thereon, and the jury has retired to consult upon the verdict, the court cannot withdraw said interrogatories from the jury over the objection of the party at whose request they were submitted, on the ground that the court was asked to require the jury to answer them unconditionally, and not upon the condition that they should render a general verdict. APPEAL from the Clay Common Pleas. The Otter Creek Block Coal Company v. Raney. WORDEN, J.-This was an action by the appellee against the appellant on contract. Issue, trial by jury, verdict and judgment for plaintiff. The point on which we decide the cause is duly preserved and presented by exception. At the proper time, the defendant submitted to the court twenty-four interrogatories to be propounded to the jury, and asked that the jury be required by the court to return answers to them; thereupon the court instructed the jury as follows, viz.: "The jury can either find a special or a general verdict, but if you find a general verdict for either party, then you must answer the interrogatories here presented by the defendant. If you find a special verdict for either party, then you need not answer the interrogatories." After the jury had been out fifteen minutes considering of their verdict, on motion of the plaintiff's attorney, the court directed the bailiff of the jury to go to the jury room and get the interrogatories propounded by the defendant and bring them to the court, which was done; and after the jury had been out about ten minutes longer, the court directed them to be brought into court again, which was done, and the court thereupon instructed them as follows: "Upon further consideration, it has been concluded to withdraw the interrogatories presented to be answered, and it will not be necessary for you to consider them further or return any answer to them, and you may now retire and return either a general or special verdict, as you see fit." Exception was duly taken to all these proceedings by the defendant. The jury found a general verdict. The "particular questions of fact" embraced in the interrogatories were germain and pertinent to the issues; at least, the most of them seem to have been. No motion was made to strike out or modify any of them. On the contrary, they were submitted to the jury without objection, and we think they could not have been rightfully rejected as a whole on account of any objection addressed to the character of the interrogatories themselves. But the ruling of the court in Rosenbaum and Others v. McThomas. withdrawing them from the jury is sought to be sustained on the ground that the court was originally asked to require the jury to answer them unconditionally, and not upon the condition that they found a general verdict. The court might have rejected them as unconditionally asked, but this was not done. On the contrary, the court required the jury to answer them on the proper, condition, namely, that they should elect to find a general verdict. This comes to the same thing as if the court had been asked to require the jury to answer them on the condition named. The interrogatories were rightfully before the jury, with proper instructions to answer them or not, as they should elect to find a general or special verdict, and we think the court erred in withdrawing them from the jury. The judgment below is reversed, with costs, and the cause remanded. H. W. Chase and F. A. Wilstach, for appellant. ROSENBAUM and Others v. MCTHOMAS. BILL OF EXCEPTIONS.-Affidavit.—An affidavit in support of a motion to dismiss an action cannot be made a part of the record except by a bill of exceptions. DAMAGES.-Nominal.-A breach of a contract renders the party breaking it liable for at least nominal damages in a suit against him on the contract brought by the other party. SAME.-Excessive.-Motion for New Trial.-If excessive damages be not assigned as a cause in a motion for a new trial, such objection is waived. ATTORNEY.-Exclusion of.-An erroneous ruling excluding a person from appearing as an attorney in a cause cannot avail the party for whom said attorney proposed to appear, if excepted to only by said attorney. APPEAL from the Posey Circuit Court. WORDEN, J.-This was an action by the appellee, Mc 34 331 144 580 |