76 Ind. App. 518 | Ind. Ct. App. | 1921
The second paragraph of the fourth amended complaint on which this case was submitted to the jury averred in substance that appellant, a common carrier, employing more than five men,’at the time of the occurrence involved, operated lines .of railroad in and through the city of Indianapolis, and employed appellee’s decedent, Calvin Mann. That certain of its lines of railway track intersect East St. Clair street in said city, which said street extends east and west. Near and at the point where the said street is crossed by the said tracks, it is almost constantly traveled by the public on foot and in vehicles. At said crossing it jogs in a northeasterly direction ácross the said tracks, and
“2292. Ringing Bell. Be it ordained by the Common Council of the city of Indianapolis, that it shall be the duty of every engineer, conductor, or other person engaged in running any locomotive, to ring the bell attached to such locomotive whenever the same shall be moving in or through this city.”
By reason of the failure of appellant’s engineer and fireman so to ring said bell as it approached said crossing and ran onto the same, the driver of said truck was unable to discover the approach of said locomotive and train of cars from the south, and was thereby misled and deceived and induced to go upon said track at said crossing at the time when said backing locomotive was
Appellant moved to require appellee to make her complaint more specific, which motion was overruled. There was an answer in denial, the cause was submitted to a jury for trial, and a verdict was returned for appellee for $5,000. Appellant assigns as error the action of the court in overruling its motion to make more specific, and in overruling its motion for a new trial.
We have carefully examined the instructions given by the court, and appellant’s objections thereto, as well as the instructions tendered by appellant and refused by the court, and we hold that in view of the foregoing conclusion, and points decided, and authorities cited, there is no reversible error in giving instructions, or in refusing to give instructions tendered. Nothing can be gained by discussing the principles involved further.
Appellant’s counsel complain of misconduct of counsel in closing argument. It appears, however, that the objectionable argument was made in criticism of statements and actions of appellant’s counsel in the presence of the jury, and the trial court in overruling appellant’s motion to withdraw the objectionable argument from the jury held that: “It is for the jury to find whether there is any evidence sustaining the argument of counsel objected to, and if the jury finds there is no such evidence tending to sustain such argument of counsel, to disregard it.” A full statement is made in appellee’s brief of the matter involved, which statement is not denied by appellant in a reply brief or otherwise. From this statement, we sustain the trial court in leaving the question with the jury. Even from appellant’s standpoint, we do not see that appellee’s conduct was so vicious, and harmful as to justify a withdrawal of the case from the jury.
We find no reversible error. The judgment is affirmed.