194 Ind. 273 | Ind. | 1923
Lead Opinion
This was an action for damages for negligently causing the death of Mabel Barthel, whose husband sued as administrator of her estate. The alleged negligence consisted of permitting the surface of Madison avenue for some distance south of an iron pole standing therein, at the intersec- . tion of Palmer street north of the J. M. and I. Railroad tracks, in the city of Indianapolis to be and remain in a defective condition, by reason of being filled with holes, bumps and projections. And the complaint alleged that while plaintiff’s decedent was riding as a passenger in an automobile in said street, these defects diverted the wheels from their course, and caused the automobile to run against said iron pole, and that plaintiff’s decedent was thereby so injured that she died. The notice served on the city within sixty days, pursuant to the provisions of the statute (§8962 Burns 1914, Acts 1907 p. 249), recited that the pole was in the center of the street, that the entire east side of the street was defective, that the automobile while being driven north was driven “into the center of the street near the west car tracks to avoid the rough places”, that the front wheels struck the holes and projections in the surface of the street and they threw the automobile “out of its path to the left and the hub of the
Appellant complains of the giving of certain instructions and the refusal to give certain others. But there is no bill of exceptions reciting what instructions were asked, what were given or what were refused, nor the fact that any exceptions thereto were reserved; and no attempt was made to reserve exceptions by a signed and dated indorsement on the
The injury was sustained at Indianapolis in January, 1917. The case was tried at Columbus, forty miles away, in October, 1919, after the lapse of two years and nine months, having been taken by change of venue to Shelby county on motion of plaintiff, and then to Bartholomew county, on motion of defendant. Plaintiff’s witnesses testified that the holes in the street had been patched since the accident, and that the iron pole that was struck by the car in which plaintiff’s decedent was riding at the time of the accident had been removed from the street. Under these conditions, the trial court did not abuse its discretion in refusing to send the jury to view the place of the injury.
Appellant complains of the exculsion of offered testimony of a conversation by the mother of decedent with appellee (now the administrator) after the accident and prior to the death of decedent, in which the witness told him that decedent needed better medical attention and should be sent to a designated hospital, and that, if he did not send her there, he would be responsible for her death. This was not error. The mere fact that appellee was appointed as administrator after the death of the injured party would not make his admissions before her death competent evidence against
Appellant complains of a lack of direct evidence that the scene of the accident was within the city of Indianapolis. But facts were proved from which the jury had a right to infer that it was. And the court will not reverse a judgment for informality of the proof of a fact when it is obvious from the evidence that the fact exists.
A witness testified that the alleged defects in the street had existed for several years. This was enough to charge the city with notice of them. Michigan City v. Boeckling (1890), 122 Ind. 39, 42; City of Valparaiso v. Chester (1911), 176 Ind. 636, 642, 96 N. E. 765.
Some other questions are discussed in appellant’s brief, but it wholly fails to show that they are presented by the record, or to point out the pages and lines of the transcript where the facts relied on and appellant’s exceptions, if any, may be found.
The judgment is affirmed.
Rehearing
On Petition for Rehearing.
It is true that a record entry may be made to show that certain instructions were tendered, that certain of them were given and others refused, that the court gave others of its own motion, and that appellant reserved exceptions to the several rulings of the court, if the instructions so given and excepted to and those refused and excepted to are sufficiently identified by the signatures of the
But the statutory requirement that requested instructions must be “signed by the party or his attorney asking the same,” and that “all instructions given by the court must be signed by the judge,” and other similar provisions are not wholly nugatory, but, at the least, have the effect of requiring identification of the instructions when copied into the transcript for an appeal.
The instructions requested in this case were not copied into the transcript in connection with the signed requests, nor in immediate connection with the record recital that instructions bearing certain numbers were given and those bearing certain other numbers were refused, but they .and the three unsigned instructions attributed to the court were identified only by parenthetical notes prefixed to them in making up the transcript. And the number of instructions which the request-signed by.counsel for plaintiff, as set out on page 26 of the transcript, purports to tender does not even correspond with the number set out on pages 30 to 33, under the head-note “instructions tendered by plaintiff.”
The instructions have not been made part of the record in any manner provided by the statute.
The petition for a rehearing is overruled.
