34 Ind. App. 133 | Ind. Ct. App. | 1904
This was an action by appellant against appellee in the Boone Circuit Court for damages for the alleged negligence of appellee in the running of its railway locomotive engine and train of cars attached thereto upon and against appellant’s horse, mule, wagon, double set of harness and fifteen grain sacks, all of the alleged value of $387, and that by the negligent acts of appellee said horse and mule were killed, and said wagon and harness and sacks destroyed, all without any fault or negligence on the part of the appellant or his servant; that said accident occurred on the 7th day of August, 1900, at a street crossing in the town of Zionsville, Boone county, Indiana. It was alleged'by appellant in the court below that appellee in approaching said crossing, and when not less than eighty nor more than one hundred rods from said crossing, omitted to sound the whistle on said locomotive engine three times, and negligently and unlawfully omitted to ring the bell attached to said engine continuously for not less than eighty nor more than one hundred rods from said crossing, until said engine had fully passed said crossing; that by reason of said negligent and unlawful conduct of appellee’s said servants in omitting to sound the whistle on appellee’s said locomotive engine, and in omitting to ring the bell on appellee’s said locomotive engine, and running appellee’s said locomotive engine and train at a high and negligent rate of speed upon and over said crossing, and while said appellant’s servant was in charge of said property and in the act of crossing said appellee’s railroad track at said crossing, using due care to avoid injury, said property of appellant was
The errors assigned in this court are: (1) The overruling of appellant’s motion for a new trial; and (2) not permitting one of appellant’s counsel to address the jury upon behalf of appellant in the closing argument.
We will consider the errors assigned in the order presented by appellant. In his motion for a new trial, appellant proposes the following reasons why a new trial should be granted: (1) Because the jury misunderstood, and, through mistake, misconstrued, instruction number fifteen given by the court. (2) Because the jury, through inadvertence and mistake, understood the court to instruct the jury that if plaintiff’s servant in charge of plaintiff’s team did not stop plaintiff’s team before driving upon the crossing, and look and listen for trains approaching the crossing, plaintiff could not recover. (3) Because a number of the jury made a mistake as to what the court instructed the jury was the duty of plaintiff’s servant in approaching the crossing when the injury occurred, in this: that said jurors understood the court to instruct the jury that if the servant of plaintiff in charge of plaintiff’s team did not stop plaintiff’s team and look and listen for approaching trains before going on the crossing, plaintiff could not recover, which aforesaid reason will more fully ap>pear jn exhibit A, herewith filed and made part hereof. (4) Because the court erred in refusing to allow P. II. Dutch, one of plaintiff’s counsel, to make a closing argument to the jury upon the
We will consider the first three reasons together. The appellant, in his argument, lays particular stress on instruction number fifteen, submitted to the jury. Appellant does not contend that the instruction does not state the law correctly, nor that the wording of the instruction was such that it could not be easily and readily understood, or that the instruction was so framed as the jury might have been misled thereby, or that it was not applicable to the evidence. Instruction number fifteen is as follows: “A railroad crossing is a place of known danger, and the plaintiff’s servants, if they knew of said crossing, were bound to approach the same upon the assumption that a train was liable to pass at any moment. To relieve the plaintiff from the imputation of negligence contributing to the injtiries sued for in this action, his servants were bound to make vigilant use of their senses of sight and hearing, so far as they would avail them; and if their view or hearing were at the time, from any cause, obstructed, this made it all the more necessary for them to use increased care and caution upon approaching the crossing. And, if because of the dangerous character of the crossing where the injuries occurred, it would have been the act of a reasonably careful and prudent man to have stopped and looked and listened for an approaching train before driving upon the crossing, and this said ser
The affidavit of appellant filed with his motion as exhibit A, whereby he says “that he is informed and believes that
It is certainly important, in the due administration of justice, that parties be not deprived of the full benefit of counsel in the presentation of their cause of action to the jury; nor do we think there is any absolute right in a defendant, by his failure to argue his case, to produce such a result. Every court is bound, in fairness, to prevent such abuses; but, inasmuch as our civil code does not take away the discretionary power of the trial court, and ho chooses to exercise that discretion, we think that this court should not interfere except in extreme cases. There is nothing in the record to show that there was anything to prevent the opening from being made as complete as possible. There is nothing except speculation to indicate that the conclusion of the jury, under any argument, would have been different. Priddy v. Dodd (1853), 4 Ind. 84; Pittsburgh, etc., R. Co.
The evidence not being in the record, no question is presented by tlie sixth, seventh, eighth and ninth reasons assigned.
Finding no error in the record, the judgment is affirmed.