66 Ind. App. 126 | Ind. Ct. App. | 1917
This action was instituted byappellee against appellant to recover damages resulting from personal injury. The following is the complaint in full: ‘ ‘ The- plaintiff Edna Brown, a minor, by her next friend Prank Brown, complains of the defendant, the Chicago, Lake Shore & South Bend Railway Company, and says: That said plaintiff is a minor under the age of 21 years, to wit, 12 years; and that she is a citizen and resident of Porter county, Indiana. That the defendant is a railway corporation organized under the laws of the State of Indiana, and as such railway corporation has been for the five years last past and is now the owner and engaged in the operation of a line of railway from the City of South Bend in St. Joseph county, Indiana, through and across the counties of St. Joseph, LaPorte, Porter and Lake in said State of Indiana, and that its said line of railway runs through the city of Michigan City, in said LaPorte county. That said railway • company during said time has been and now is engaged in running and operating trains and cars by the use of electric motive power for the transportation of passengers for hire, the fare for such to be collected upon said trains and cars from certain stations and stopping places to other stations and stopping places along its said route. That on the 25th day of May, 1910, the plaintiff, Edna Brown, at said Michigan City in said LaPorte county, desiring to become a passenger upon one of said defendant’s cars, to wit, No. 72,'bound westwardly on said railway, at about the hour of 5:40 p. m. of said day, at a regular stopping place for the cars of said
Answer in denial. Verdict and judgment for $5,000. Appellant’s motion for a new trial was overruled, and that action of the court is the only error assigned. Appellant specified in said motion thirty-four grounds for a new trial; hut it appears from its brief that it waives all of them except those hereinafter considered.
It is well settled that where the testimony of a witness upon a material point is prejudicial to the opposite party, such witness, after the proper foundation is laid, may be impeached by proof of his prior inconsistent statements. 2 Elliott, General Practice §674; Pape v. Lathrop (1897), 18 Ind. App. 683, 650, 46 N. E. 154; Blough v. Parry (1896), 144 Ind. 463, 40 N. E. 70, 43 N. E. 560. From the testimony given by the conductor the jury might reasonably have drawn the conclusion that he was exceptionally diligent, attentive and faithful in the discharge of his duties; that he was in a position to have seen the girl' if she had been where she claims to have been; that because he did not see her, she was not there; and that her story of the alleged occurrence is a fabrication. It is clear, therefore, that the statement .made by him to Oberholtzer is inconsistent with his .testimony. That it was admissible for the purpose of impeaching McCall, there can be no doubt. On this point the court gave the following instruction: “No. 16.' Evidence has been permitted to go to you of a statement made by the conductor to the witness .Oberholtzer, by way of impeachment. You are instructed that this evidence is not to be treated by you as evidence of a substantive fact, if any, referred to in such statement, but only for the purpose of determining the credibility of the conductor as a witness; and it is for you to determine from the evidence, where witnesses contradict each otlier, which is the more worthy of credit and give credit accordingly, and for this purpose you may take into consideration their interest, if any, their demeanor on
In its motion for a new trial the asking of said question is not characterized as misconduct. The specification in said motion is: “That the court erred in permitting the plaintiff’s attorney to ask the witness C. M. Wilcoxin the.following question on cross-examination: (here insert):” We are referred to no authority on this point. Under ordinary conditions it cannot be error for the court to permit the asking of a question of this character on cross-examination. The right of cross-examination is necessarily one of broad scope and privilege. 2 Elliott, General Practice, ch. 25. In view of the special circumstances under which it was propounded, the question was within the rules of cross-examination.
It should be observed also that the entire subject-matter of Mr. Wilcoxin’s testimony-is wholly immaterial. The fact that Mrs. Brown did or did not make that call could not have aided the jurors in the slightest degree in making up their verdict.
In connection with appellant’s contention that the mere asking of the question tended to prejudice the jury, it is proper to observe that the court gave the following instruction: “No. 15. You are instructed that you should not permit any feeling of prejudice to influence you in this case in coming to a conclusion; and the fact that the defendant is a corporation and the plaintiff is an individual and a girl, should not be permitted by you to arouse in your» mind a feeling or prejudice as against the defendant, or decide this case as a matter of sympathy for the plaintiff. ’ ’
(5) The tenth instruction, given by the court on its own motion, is in the following words: “If you find that at the time of the alleged injury plaintiff was attempting to board a car upon defendant’s railroad for the purpose of riding thereon as a passenger, I instruct you that it was the duty of the defendant to stop such car a sufficient length of time to enable plaintiff, in the exercise of due prudence and care, to climb upon the platform and enter the car; and if the servants- of the defendant in charge of the car fail so to do, but started the car in motion while plaintiff was climbing the steps leading to its entrance and before she had time to reach a place of safety, the defendant was guilty of negligence. If
No error having been shown, the judgment is affirmed.
Note. — Reported in 115 N. E. 368. Negligence of street car company in starting car before passenger bas reached place of safety, liability, 42 L. R. A. 294, 4 L. R. A. (N. S.) 558, L. R. A. 1915A 797. See under (5) 10 O. J. 1040.