44 Ind. App. 322 | Ind. Ct. App. | 1909
Lead Opinion
This action was brought by the appellee to recover damages alleged to have been sustained by him, through
The reasons assigned for a new trial in appellant’s motion, and urged here as grounds for a reversal of the judgment, are, that the evidence is insufficient to sustain the verdict, and that the court erred in excluding certain evidence offered by appellant, in admitting certain evidence for the appellee, and in refusing instructions twenty-seven and thirty-one tendered by appellant.
The court cannot say, as a matter of law, that appellee was guilty of negligence because he built his house on a muck bed which was drained, and which there is evidence tending to show he did not know, at the time he built his improvements, was subject to overflow, and which further tends to show that it was not overflowed for several years after he made his improvements, and- not until the water from the North side sewer system was brought into the Main sewer, and this justified a finding of the jury that all the overflow appellee’s property suffered was caused by that act.
In support of appellant’s contention that this ruling of the court was erroneous, numerous authorities are cited, to the effect that the records kept by these government officials are competent to prove weather conditions at a given time in the vicinity of the place where the record is kept. Only the best evidence available to the party offering it is required by the law. The record of the weather conditions, which the witness was called upon to testify in reference to, were in
We are referred to the case of City of Valparaiso v. Ramsey (1894), 11 Ind. App. 215, as being decisive of the question presented by the ruling of the court in refusing to give this instruction. In that case the following instruction was given: “And if you further find that promises to remedy
The instruction in this case presumes the appellee’s cause of action established, and relates not to negligence contributing to the injury, but to negligence in failing to minimize the damages after the injury had been sustained. It was the duty of the appellee to exercise reasonable care to minimize the damages which he might sustain on account of the wrongful acts of the appellant, and his failure to exercise such care would preclude his recovery for all damages suffered by him which might have been prevented by the exercise of due care on his part. But before appellee could have imposed on him the dirty of exercising care to prevent damages from appellant’s wrong, he must first have been chargeable with knowledge that the wrong would be committed. He was not bound to anticipate that it would be done. He had a right to rely upon the appellant’s per
The instruction under consideration leaves out of account any reference whatever to knowledge on the part of appellee that the wrong complained of would be committed. For this reason the instruction was properly refused.
Appellee’s instruction three, given by the court to the jury, is criticised. There was no error in giving this instruction. It is not mandatory in form, and simply stated to the jury the theory of appellee’s ease.
We find no reversible error in the record, and the judgment of the court below is affirmed.
Rehearing
The appellant’s contention was not misunderstood. The difficulty lies not in appellant’s theory, but in the substance of the matters sought to be elicited by the interrogatory in question. It was shown that the witness Kuhlman was the government weather signal officer; that it was a part of his official duty to measure the rainfall, and keep a record of such measurements, and he was provided by the government with an instrument for this purpose. What the appellant’s question sought to elicit was not the witness’s personal knowledge about the rainfall, but facts of which he was required to keep an official record. The question was: “You may state what the amount of rainfall was at that station, as shown by the measurement made by you.” What was shown by the measurement made by him was a matter of official record, and the record was the best evidence of these facts.
Other questions urged upon our consideration by the able
Petition for rehearing overruled.