41 Ind. App. 53 | Ind. Ct. App. | 1908
Lead Opinion
Appellant brought this action against appellee to recover damages, for personal injury alleged to have been sustained in attempting to board one of appellee’s interurban cars in the city of Kokomo, and alleging that the appellee was negligent in starting said car while appellant was in the act of boarding it. Appellant answered by general denial. Upon trial by jury a verdict for the appellee was returned, and judgment rendered thereon in its favor for costs. Appellant’s motion for a new trial was overruled. The only question attempted to be presented by appellant alises upon the correctness of certain instructions given and others refused. No part of the evidence is in the record.
Appellant excepted to and complains of a number of the instructions given at the request of the defendant, but especially of instructions two, six, seven and twelve. They are as follows: “(2) If you find from the evidence in this case that the plaintiff was guilty of .contributory negligence that resulted in his injury, then the plaintiff cannot, in such ease, recover.” In the sixth occurs this language: “And if such plaintiff -was injured as alleged in the complaint, but you find he was guilty of contributory negligence in attempting to board the defendant’s car while the same was in motion, and was injured thereby, then the plaintiff cannot recover. * * * Or if the plaintiff was guilty of any contributory negligence, and that fact is proved by the evidence of the plaintiff or his witnesses, that is just as effective as if proved by the defendant, and will defeat a recovery.” (7) ‘1 If you find from the evidence in this case that the plaintiff was negligent in attempting to board the car and that the defendant was negligent in starting the car, in other words, if the plaintiff and defendant were both negligent, then, in such case, the plaintiff cannot recover in this case, and your verdict should be for the defendant.” (12) “The defendant in this case is not an insurer of the safety of its passengers, either while riding, alighting from, or attempting to
Judgment reversed, and cause remanded', with instructions to sustain appellant’s motion for a new trial.
Concurrence Opinion
Concurring Opinion.
The State Bar Association of Indiana at its 1902 meeting declared that “our statutes relating to appeals to the Supreme and Appellate Courts need many amendments for the purpose of simplifying the practice and reaching the merits of a cause on appeal, which object, under the present practice, is often frustrated by useless technicalities,” and a committee of five was appointed for the purpose of preparing and submitting bills upon the subject to the next General Assembly. Proceedings State Bar Assn, of Ind., 1902, p. 71. That committee prepared and presented to the Sixty-third General Assembly a bill for the act of March 9, 1903. It thus appears that legislative aid was invoked by the bar of the State for the purpose of rescuing the courts from the system of procedure which they had created and from which they were either unable or unwilling to extricate themselves. It does not need to be said that the act “is in furtherance of justice — it is remedial; it tends to simplify procedure; it lightens the burden of litigants without injustice to any one,
The statute requires a succinct recital of the substance of such part of the evidence and proceedings as may be necessary to advise the court of appeal of the pertinency or materiality of the matters sought to be reviewed. “It is not for the court, in * * * framing instructions, to determine the probative force of' evidence. If the evidence is material, relevant and competent, it is for the jury, and instructions bearing upon the evidence, without respect to its weight or credibility, cannot be deemed irrelevant.” Union Mut. Life Ins. Co. v. Buchanan (1885), 100 Ind. 63, 73. If there was evidence to which the instructions requested were relevant, they should have been given, and the refusal to give them would be error, unless, of course, the record shows that the same ground was covered by instructions given. Such error might or might not be reversible, but the first matter to be determined is whether evidence was introduced making the requested charge applicable to the case on trial. That fact is recited in the bill of exceptions. The form of recital might be improved upon, but it is sufficient to convey the necessary, information. Section 691 Burns 1908, §650 R. S. 1881, in terms requires a statement that the instruction was ‘ ‘ applicable to the evidence in the cause. ’ ’ Such fact is a competent one to be stated by the trial judge. Kinney v. Dodge (1885), 101 Ind. 573; Geiger v. Huenneke (1896), 16 Ind. App. 326; Adams v. Vanderbeck (1897), 148 Ind. 92, 62 Am. St. 497; Jennings v. Bond (1896), 14 Ind. App. 282, 292.
The same rules apply to an instruction given when an ex