157 Ind. 509 | Ind. | 1901
Action below by appellant to- recover for personal injuries sustained while in the service of appellee in its yards at the city of Bedford. The injury in question is attributed to a defective brake staff, which, when being handled by appellant, broke near the ratchet wheel,
The complaint was held sufficient on demurrer and appellee answered by a general denial. On December 22, 1900, the cause was submitted to a jury for trial, and a verdict in favor of the appellee was returned, together with answers to a series of interrogatories submitted to the jury by the court. Motions by appellant for judgment on the answers to the interrogatories, and for a new trial, were each denied, and judgment for costs was rendered against him. The errors assigned are based on the rulings denying these respective motions.
The principal points which counsel for appellant seek to have reviewed relate to' the giving of certain instructions and to the admission and exclusion of certain evidence. The original bill of exceptions containing the original longhand manuscript of the evidence, together with the rulings
Under the rule asserted and enforced in Johnson v. Johnson, 156 Ind. 592, the evidence and the rulings of the court in admitting and excluding testimony are not properly before us, and cannot be considered in this appeal for any purpose. In Johnson v. Johnson, supra, this court said:
By the act of 1891, Acts 1897, p. 244, §638a Bums 1901, the clerk of the lower court is authorized to certify to this court on the appeal of a cause the original bill of exceptions containing the evidence and the. rulings of the court in respect to the admission and rejection of evidence, etc., instead of a copy thereof only upon the request of the appealing party. Adams v. State, 156 Ind. 596, p. 600 of the opinion. In fact, this is the plain wording of the statute of 1897, sugra, and is not open to construction. It is expressly disclosed by the precipe in this case that appellant directed the clerk below to prepare and certify a “full, true, and complete transcript of the proceedings, papers on file, and judgment in the above entitled cause, to be used on appeal to the Supreme Court.” Under the directions given to the clerk in the precipe in question it became his duty to certify to this court a transcript or copy of the original bill of exceptions containing the evidence and the rulings of the court in the admission or exclusion of testimony, and his act in certifying the original bill was, under the statute, unauthorized. Where the clerk of a trial court has certified to this court on appeal of a cause the original bill of exceptions embracing the evidence, we will presume that the clerk has done so upon the request of the appealing party in discharge of the duty enjoined upon him by the statute in question, in the absence of anything appearing in
The findings of the jury upon the interrogatories disclose that the defect in the brake staff consisted of a flaw in the metal which was hidden from view or observation; that this defect in the staff could not have been discovered without loosening and removing from its place the ratchet wheel from said staff; that the car upon which the brake staff had been placed in the construction of the car was purchased in March, 1898, by appellee, from a manufacturer of cars in good repute and of a recognized standing in the manufacture of cars. On the day previous to the accident appellee made an inspection of the car in controversy, but the
We have examined the instructions about which appellant complains, and are of the opinion that none of them can be considered faulty or wrong upon any supposable state of facts that might have been proved within the issues in the case. Consequently we miust be controlled by the rule asserted in Rapp v. Kester, 125 Ind. 79; Wenning v. Teeple, 144 Ind. 189. In the absence of the evidence we are bound to presume that the instructions in question were applicable thereto. It was not essential for appellant to incorporate into the record all of the evidence given in the cause in order to present for a review by this court purely legal questions arising on the giving or refusal of instructions or on the rulings of the court in admitting or excluding evidence. He was at liberty to have pursued the method provided by §662 Burns 1901, §650 Horner 1897, and prescribed by the mle asserted in Mercer v. Corbin, 117 Ind. 450, 3 L. R. A. 221, 10 Am. St. 76; Jones v. Foley, 121 Ind. 180; McCoy v. State ex rel., 121 Ind. 160; Bain v. Goss, 123 Ind. 511; Wright v. City of Crawfordsville, 142 Ind. 636. Where, however, an appealing party, as in this case, assumes to bring all of the evidence into the record by a bill of exceptions, and elects to present his appeal by that method, he must pursue the course pointed out by the decisions of this court which contx-ol in such cases, and where for any reason the evidence is not properly before us, he can not successfully demand a reversal of the judgment on the ground of erroneous instructions, unless he shows that some one or all thereof are radically wrong under any supposable state of facts that could have been proved under the issues of the case, and that such instruction or instructions direct the
It is disclosed by a bill of exceptions that on the trial of the cause and after the evidence had been closed, but before the argument in the case had commenced, that the court announced that it would submit to and instruct the jury to answer certain interrogatories numbered from one to twenty-eight, in the event they agreed on a general verdict; that counsel for appellant in opening the argument to the jury requested the court to allow him to read each of said interrogatories to the jury and comment thereon in his argument. This request, over appellant’s exception, the court denied. Thereafter counsel for appellant took copies of the interrogatories numbered from twelve to seventeen and attempted to read each of them to the jury, and to advise the jury how to answer them according to the evidence. This the court would not permit, but announced to counsel for appellant that he might argue the facts in the case fully to the jury, but that he must argue them in respect to the said interrogatories from memory only; that he would not be permitted “to take the interrogatories to the jury and tell the jury how to answer the same.” By this ruling it is insisted that the court erred. In this contention we cannot concur. By §1 of an act approved March 4, 1891 (Acts 1897, p. 128), §555 Burns 1901, it is provided: “That in all actions hereafter tried by a jury, the jury shall render a general verdict, but in all cases when requested by either party, the court shall instruct them when they render a general verdict to find specially upon particular questions of fact to be stated to them) in writing in the form of interrogatories on any or all the issues in the cause,” etc.
We know of no rule or principle declared either by any statute in force in this State or by what is commonly denominated the “unwritten law” which required the court to award to appellant the particular right which his counsel demanded. The privilege of reading to the jury either the
Finding no available error the judgment is affirmed.