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the negligence charged in the complaint. The court, of course, might have required appellee's counsel to state what was expected to be proved by the answer of the witness to the question, but it was not bound to do so. We think, too, that appellant might have required the question to be made more specific, so as to show to, what subject the statement by the inquirer related. No such request was made, nor was there any objection to the question because of its being so general; and, clearly, the question being competent, in the absence of such objection, appellant might have moved to strike out the answer, and saved the point as to its competency, by excepting to the ruling of the court, if adverse to it. Having neglected to pursue either of these methods, it ought not to be heard now to insist upon a reversal of the judgment because of the court's ruling upon the objection, made in the manner and at the time it was made. Wolfe v. Pugh, 101 Ind. 293, 306. The question here is, did the court, in overruling the objection to the question, under the circumstances, commit error? We think not. When we have decided this, we have decided all that the record requires, and hence do not enter upon the question as to the competency of the answer by the witness.

Further contentions by appellant's counsel are that the court below erred in allowing appellee's witness Sheeks, who saw the train about a mile and a half south of where the accident occurred, to testify that, at the point where he observed it, "the train was running at a rapid rate of speed,-faster than usual;" and in overruling an objection to the following question, put by appellee's counsel to her witness Wilkinson, viz.: "What was the speed of that train going north, on the thirteenth day of June, 1882, as compared with the usual speed of trains going in the same direction, at that point?" To this question the witness answered: "The train, when it passed my house, was running very fast, and faster than trains of defendant had usually run at that point." The only specific objection made to the question put to these witnesses, and hence the only objection that can be noticed, was that the evidence thus sought would not tend to show the speed of the train at or near the place where the accident took place, and that it had not been shown that the witnesses were competent to form an opinion.

As will be observed, the objection does not raise the question as to whether or not a witness may give the result of his comparison of the speed of one train with the speed of another, and hence that question is not before us for decision. The only question raised by the objection is this: In this case, where negligence is charged in the running of the train at a high and dangerous rate of speed, may witnesses who saw the train at a point one and a half miles from the place where the accident occurred state the rate of speed at the point where they thus observed the train? In point of time, at least, the train, running at a high rate of speed, would not be far from the place of the accident when a mile and a half away. Whatever might be said of the evidence, if it stood alone and unconnected with other evidence, we think it was competent in connection with the testimony of the witness Mathews. He showed himself to be competent to give an opinion as to the speed of trains when upon them, and testified that he was on the train in question; had his attention directed to its speed by other passengers talking about it, just before the accident; that it was running at the rate of 55 miles an hour, and that the speed had not been checked after leaving Mitchell. If, as this witness stated, the speed had not been checked, it was not improper to show that it was running at a rapid rate of speed when but a mile and a half from the place of the accident. As to the competency of the witnesses it is sufficient to say that they were certainly competent to know and state whether the train was moving rapidly or slowly.

It has been held that no question of science is involved, and that a person need not be an expert to give his opinion as to the speed of a moving train. The testimony of one not an expert may not be of so much weight, but it is

nevertheless competent. Detroit & M. R. Co v. Van Steinburg, 17 Mich. 99. It is argued in behalf of appellant that, by the first instruction, the court submitted the case to the jury upon a false theory. In that instruction the court embodied, substantially, the averments in the complaint. The instruction is no broader than the complaint, and in no way that we can conceive of could have misled the jury.

It is earnestly insisted that the fourth charge given by the court was erroneous, in that the jury were therein instructed that, in order to meet the presumption of negligence which arose out of the fact of the wrecking of the train, it was incumbent upon appellant to explain the cause of the accident. So much of that instruction as needs to be set out is as follows: "The plaintiff must allege that the accident was caused by the negligence or carelessness of some agent or employe of the defendant, and the plaintiff must establish this averment; but when the plaintiff proves that the train was precipitated down an embankment, and the plaintiff, without fault on her part, thereby received injuries, the presumption arises that the accident was the result of some act or omission of the defendant's agents, servants, and employes, and it devolves upon the defendant to explain how such accident happened. And if, after the jury has heard all the evidence, it finds that the accident occurred without any fault, carelessness, or negligence of the defendant, its agents, employes, or servants, but that the same occurred by reason of some act or conduct of some one for whose act the defendant could not guard against by reasonable diligence, then the defendant would not be liable."

The instruction must be considered as a whole, and in connection with the other instructions in the case. If taken as a whole, and in connection with the other instructions given, the law of the case is correctly stated, there can be no available error in the fact that there may be some inaccurate statements in the instructions above set out. McDermott v. State, 89 Ind. 187; Nicoles v. Calvert, 96 Ind. 316; Wright v. Fansler, 90 Ind. 492; Story v. State, 99 Ind. 413; Barnett v. State, 100 Ind. 171; Koerner v. State, 98 Ind. 7; Elkhart Mut. Aid, etc., Ass'n v. Houghton, 103 Ind. 286, 290; S. C. 2 N. E. Rep. 763; Stockwell v. Brant, 97 Ind. 474; Louisville & N. R. Co. v. Kelly, 92 Ind. 371; Young v. Clegg, 93 Ind. 371; Louisville, N. A. & C. Ry. Co. v. White, 94 Ind. 257; Louisville, N. A. & C. Ry. Co. v. Grantham, 104 Ind. 353; S. C. 4 N. E. Rep. 49; Conrad v. Kinzie, 105 Ind. 281; S. C. 4 N. E. Rep. 863.

There is a statement in the instruction above set out that, to meet the presumption of negligence on its part, it devolved upon appellant to explain how the accident happened. If, standing alone, as in the case of Tuttle v. Chicago, R. I. & P. R. Co., 48 Iowa, 239, cited by counsel, that statement would be erroneous. Doubtless, there have been, and will hereafter be, accidents the cause of which can never be known. What is required, and all that is required of a railroad company, in a case like this, to overthrow the presumption of negligence on its part, when such a presumption arises, and to exonerate itself from liability, is to show, as stated in the case of Cleveland, C., C. & I. R. Co. v. Newell, supra, "that, in the conduct of its business, it had employed the utmost skill, prudence, and circumspection practically and usually applied to railroad carrying, and that, notwithstanding all that, the cause of the accident was not and could not reasonably have been discovered and guarded against."

The statement in the instruction complained of must, as we have seen, be taken in connection with what precedes and follows it. In the former part of the charge, not here set out, the court instructed the jury that, if certain facts were found, a presumption of negligence would arise, and that it would then devolve upon appellant to show that the accident happened without any fault or negligence on its part. Thus the jury were instructed that an absence of negligence on the part of appellant would be a sufficient defense, and

so, immediately following the statement complained of, the jury are again instructed that appellant would not be liable if the accident should be found to have occurred without fault or negligence on its part. By the second charge the jury were instructed that appellant would be liable if the accident happened by reason of its negligence. By the third instruction the jury were told that they would be required to determine whether the accident occurred through the "negligence and carelessness of the defendant, its agents, servants, and employes." The sixth instruction was upon the same subject, and was as follows: "It is for you to determine, from the evidence, whether the accident occurred through the fault of the defendant, or that it could have been avoided by proper and reasonable care and diligence of defendant's agents and employes."

By those instructions, taken together, the case was submitted to the jury upon the theory that appellant was not liable unless guilty of negligence. So, doubtless, the jury understood the instructions. It is hardly possible that they could have understood from them that appellant was to be held liable unless it furnished an explanation of how the accident occurred.

What has been said of the fourth may be applied to a large extent to the fifth instruction. Taken as a whole, and in connection with the other instructions, the jury were thereby instructed that appellant was liable if it was negligent with respect to the condition of the ties, etc., or the running of the train. That, we think, brought the case within the complaint, and hence

was not erroneous.

After stating the elements of damages to be considered by the jury, including permanent disablement, if that should be found, the court added this, in the seventh instruction: "To which you may add such an amount as you may, in the exercise of a sound discretion, think will be a just compensation for her anxiety and distress of mind," etc. The only objection urged to that instruction is that the jury were thereby authorized to fix the amount of damages for appellee's anxiety and distress of mind, without regard to the evidence. The eleventh instruction fully meets that objection. In that instruction the jury were not only directed to determine the case by the law and the evidence, but were cautioned, in strong terms, against being influenced, in the least, by sympathy, favoritism, or prejudice. It is unnecessary, as it is impracticable, to embody all the law of the case in one instruction; and, when a rule of law applicable to the case is given in one instruction, it is not necessary to repeat it in another. Louisville, N. A. & C. Ry. Co. v. Falvey, 104 Ind. 409, 426; S. C. 3 N. E. Rep. 389, and 4 N. E. Rep. 908; City of Indianapolis v. Scott, 72 Ind. 196.

The ninth instruction, of which counsel for appellant specially complain, is as follows: "(9) If you find from the evidence that the plaintiff was diseased at and before the accident, and that her present condition is attributable to such former diseased condition, and not in any manner or part attributable to the injuries received in the railroad accident, and that plaintiff in fact received no injuries from said accident, then you would have to find for defendant. If you find that the plaintiff was diseased at and before the accident, but that by the accident her disease has been aggravated or intensified, then you will give her damages for just such injuries as she has sustained which are the result of the accident. If you find from the evidence that plaintiff, prior to the accident, was sound and free from disease, and that by reason of the injury received in the accident she has become crippled, diseased, disabled, and permanently injured, then you will assess such a sum as will compensate her fairly for the injuries thus sustained."

The first objection urged to this instruction is that it assumes that appellee was injured. In answer to that, it is sufficient to say that other instructions left it to the jury to determine as to whether or not appellee, without any conflict, shows that she was injured. See Koerner v. State, 98 Ind. 7, 13.

The only other objection that challenges attention is limited to that portion of the instructions with reference to the aggravation of an existing disease. It is most earnestly contended by appellant's counsel, in a lengthy argument which shows thought and research, that appellant cannot be held liable for the aggravation of an existing disease, although that aggravation was the result of its negligence and the injury appellee thereby received. In other words, their position is that if, at the time of the injury, appellee was in any way suffering from, and was to any extent disabled by, an existing disease, and her sufferings were intensified, and her disablement increased, by the injury, she cannot recover for such additional suffering, and increased disablement, because the injury was not the proximate and sole cause thereof. The argument is based upon the familiar maxim, causa proxima et non remota spectatur. We do not think it would be profitable, in this case, to extend the opinion in a review of the numerous cases cited by counsel, and in an examination of the arguments advanced, as the question here involved has been examined at length, and decided by this court in recent cases, one of which has been decided since the filing of appellant's brief. Under those decisions, the law is correctly stated in the instructions under consideration. Terre Haute, etc., R. Co. v. Buck, 96 Ind. 346, S. C. 49 Amer. Rep. 168, and the numerous cases there cited; Louisville, N. A. & C. Ry. Co. v. Falvey, supra, and the cases there cited.

By an instruction asked by appellant the court was requested to charge the jury that a railway company has the right to propel its train over its road at such rate of speed as it sees fit; that no rate of speed is negligence per se or of itself; and that if, in this case, the jury should find that, at the place where the accident occurred, the railroad track was in good repair, the ties sound, the rails of suitable character and in safe condition, properly spiked and fastened to the ties with proper elevation, the running of the train at a high rate of speed would not be an act of negligence, and the verdict should be for appellant. As applied to this case, that instruction, as asked, does not state the law correctly. Whatever may be said in other cases, it surely cannot be that, as between the railroad company and the passengers upon its trains, whose lives are in its keeping, it may run the trains at any rate of speed it may see fit, upon a down grade, and around a curve. The rate of speed might be such as to make derailment of the train, under such circumstances, almost certain. However that may be, in this case it was for the jury to say whether or not, under all the circumstances, the appellant was guilty of negligence in running the train at the rate of speed it was run. The cases of Terre Haute, etc., R. Co. v. Clark, 73 Ind. 172, and Cleveland, C., C. & I. Ry. Co. v. Newell, 75 Ind. 542, cited by appellant's counsel, lend no support whatever to the instruction. The reasoning there condemns it. Neither do the other cases cited support the instruction, with the exception of the case of Indiana, B. & W. Ry. Co. v. Hall, 106 Ill. 371, in which a contrary doctrine was held. None of them were cases between the corporation and a passenger. In that case the locomotive and cars were in good condition, and the track was straight, and in good repair. In the court below the jury were instructed that if the train was run at such a rate of speed as to become a negligent management, and the injury resulted in consequence, the verdict should be for the plaintiff. The supreme court held that the instruction was a proper one, and said: "So long as the increased speed of trains adds nothing to the dangers and risks of the traveling public, courts have no right to interfere. Subject to this limitation, railway companies have the unquestioned right to fix the rate of speed as they think best."

After a patient and careful examination of the alleged errors discussed by counsel, we find no error in the record that requires, or that would justify, this court in reversing the judgment.

Judgment affirmed, with costs.


In cases of injuries resulting from accidents on railroad trains, a presumption of negligence arises against the company, which can be overcome only by proof that it had used the utmost skill and care, and that the cause of the accident could not have been foreseen, nor the accident prevented. Louisville, N. A. & C. Ry. Co. v. Pedigo, (Ind.) 8 N. E. Rep. 627; Louisville, N. A. & C. Ry. Co. v. Thompson, Id. 18; S. C. 9 N. E. Rep. 357; Cleveland, C., C. & I. Ry. Co. v. Newell, (Ind.) 3 N. E. Rep. 836; Moore v. Des Moines & F. D. R. Co., (Iowa,) 30 N. W. Rep. 51; Wilson v. Northern Pac. Ry. Co., (Minn.) 3 N. W. Rep. 333.

This rule has been applied to street railways, Baltimore & Y. T. P. R. v. Leonhardt, (Md.) 5 Atl. Rep. 346; to steam-boats, Dunlap v. Steamer Reliance, 2 Fed. Rep. 249; to stage-coaches, Lawrence v. Green, (Cal.) 11 Pac. Rep. 750.

This rule had not been adopted in Michigan. Mitchell v. Chicago & G. T. Ry. Co., 16' N. W. Rep. 388.

(103 N. Y. 25)


(Court of Appeals of New York. October 5, 1886.)


Plaintiff was entitled to elect whether he would rescind a contract for fraud, and sue for the tort, or affirm the contract and sue on it. He sued on the contract, and was also permitted to bring trover, as having made no election by suing on the contract. Held that, in order to disclose error, the record must show that plaintiff, when he brought the action on the contract, knew of the fraud.


The burden of showing error is on the appellant, and the court will not, for the purpose of reversing a judgment, look into the evidence to supply a fact not found. It is only for the purpose of affirming a judgment that the court will look at the evidence to supply a fact not specified in the findings.

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A finding, erroneous as being unsupported by the evidence, is not available on appeal unless it is excepted to.

Trover for certain stoves and stove furniture of the plaintiff claimed by him to have been converted by the defendant's testator. The property in question was sold and delivered by the plaintiff in the summer and fall of 1876 to the firm of M. Fisher & Co. on credit. The firm was composed of Martin Fisher and Sanford Whiting, and was engaged in the business of selling stoves and hollow ware in the city of Buffalo, where the defendant's testator resided. At the time of the purchase, the firm was insolvent, and was indebted in a large amount, nearly $10,000 of which was owing to defendant's testator. The plaintiff claims that it was induced to sell said goods to said firm on credit by false and fraudulent representations made by Fisher as to the means and pecuniary condition of the firm, and that said firm, knowing their insolvency, purchased the said goods with intent not to pay for them.

On August 12, 1876, the defendant's testator commenced an action against the members of said firm, in which he claimed judgment against them for the sum of $9,471.34, besides interest upon 26 promissory notes executed by said firm to him, at different dates, from May 1, 1872, to July 29, 1876. The defendants in that action made default, and Hersee, defendant's testator, did not enter up judgment against them until October 23, 1876. Most of the goods which form the subject of this action were delivered to Fisher & Co., and received by them, after Hersee sued them, and before he entered up judgment.

Soon after the said judgment was docketed, Hersee, by virtue of an execution issued on the same, levied on a portion of said property, of the value of $711.58, and bid it off at sheriff's sale, applying the amount of his bid towards the satisfaction of his said judgment. The plaintiff was informed of Hersee's judgment in October, soon after it was obtained. On November 25, 1876, the plaintiff signed an agreement to compromise its debts against Fisher & Co. at 25 cents on the dollar, conditioned, however, that it was not to be binding till all the creditors assented to the same. At the time of signing

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