22 Ind. App. 656 | Ind. Ct. App. | 1899
— The appellee recovered judgment against the appellant in the sum of $1,000 for personal injury. It is assigned that the court erred in overruling the appellant’s motion for a new trial.
The appellee has moved to dismiss the appeal. The first and second grounds of the motion are, in effect, because the evidence is not properly in the record, and because “the bill
The record shows that the complaint, which is set out, was filed in the court below, on change of venue from the Vanderburgh Circuit Court. At the end of the transcript the clerk certifies that “the above and foregoing transcript contains true and complete copies of all papers and entries in said cause as set out.” The appellee submitted his cause to the court below, and recovered his judgment under the complaint so set out in the record. He is not in position to deny the jurisdiction of the trial court, and he does not pretend to do so. If the certificate of the clerk, as above stated, was not correct, and there were other papers or entries constituting parts of the record of this cause remaining in the court below, a transcript thereof, upon proper application, might have been brought into this court. We do not find any sufficient reason for the dismissal of the appeal.
The question whether or not the evidence is in the record is one which is always before us when any matter requiring
As one of the reasons for claiming that the evidence is not properly before us, it is suggested that it does not appear that the appellant directed the clerk to certify up the original longhand report of the evidence, and that it was the clerk’s duty to copy the entire record. The transcript of the record, with the appellant’s assignment of errors attached, having been filed in this court, we will not presume against the record that the clerk did not have the authority of the appellant to certify up the original report of the evidence,
One of the grounds of the motion for a new trial was-the refusal of the court to permit the appellant to read “certain parts of the deposition of the plaintiff, TIarry N. Ball, taken November 20, 1896, and in ruling that the defendant-should not put in evidence any part of the deposition unless he put in all, and thereby obliging the defendant to put in evidence the entire deposition, to get the benefit of any.” A writing purporting to be a deposition of Harry N. Ball, the plaintiff, and having his name attached thereto, was produced on the trial. The plaintiff was a witness on the trial, and then testified that this paper was the deposition he had given in the case, and that after giving it he had read and signed it; and while so testifying upon the trial he was interrogated concerning some of the questions and answers in that paper. At a subsequent stage of the trial, to which the statement of cause in the motion for a new trial relates, the appellant, as shown by the record, offered in evidence parts of the deposition not specified in the offer except as parts, testified and sworn to at the former stage of the trial. ' The appellant, it is shown by the record, asked to introduce these parts “because the plaintiff himself testified that he made the distinct statements which are indicated, and offered to be read in evidence, and that he testified to the- statements separate from other parts of the deposition.” The court sustained appellee’s objection to the introduction of the parts, but permitted the whole deposition to be introduced. It appears from the statement of counsel in making the offer to-read the parts that they were not offered for the purpose of impeachment, for when read to the witness on the trial he
On the trial, which was on the 30th of September, 1897, the appellant introduced in evidence a letter, signed by an attorney for the appellant, to the attorneys for the appellee, with the written acknowledgment by the attorneys for the appellee of the receipt thereof on the 5th of June, 1897, in which said attorney for the appellant requested the attorneys for the appellee to consent, or to procure the appellee’s consent, to an examination of the appellee by two physicians, to determine the nature and extent of the injuries for which appellee sued herein, at such time and place as might be satisfactory to appellee or his said attorneys, and the names of two physicians were suggested. The appellant then
In Louisville, etc., R. Co. v. Falvey, 104 Ind. 409, which was an action for personal injury, it was said concerning the exclusion of an affidavit of Dr. O’Farrall offered in evidence: “It is said that this affidavit was competent for the purpose of showing that the appellee objected to a medical examinaation of his person. We perceive no merit in this position. The appellee ‘ unquestionably had a right to make the objection she did, and the jury could have nothing to do with her conduct in opposing an examination. It is a debatable
It will be observed that the witness whose testimony we are considering did not testify to any statement of the physician, Dr. McOoy, 'but testified that, on his advice in the matter, the witness and the áttorney associated with him determined that the examination would result injuriously to the appellee and that they thought it their duty to him to refuse, as they were not required to submit to the examination. Tire appellee had a right to refuse to submit to the examination without giving any reason. Any reason
One of the causes in the motion for a new trial was “Error of the court in not allowing J. C. DeBar to testify as to whether a high-geared bicycle was a fast or slow running bicycle.” The question addressed to the witness, to which ■we are referred in the appellant’s brief, was: “Is a high-gear or low-gear bicycle a fast or slow running bicycle?” This does not seem to be such a question as that described in the motion for a new trial, or one adapted to elicit such testimony as that which the court is by the motion represented as not allowing. Besides, it had not been shown that the witness was acquainted with the effect of differences in the gearing of bicycles. The question of speed entered into the question of negligence involved, and, incidentally, the capacity for speed of the bicycle on which the appellee was riding, when injured by collision with one of the horses attached to and drawing the appellant’s beer wagon, was a relevant matter; but that capacity could not be proved or usefully illustrated by such a comparison.
The appellant submitted to the court a written series of interrogatories to be answered by the jury when they rendered the general verdict; but the court refused to submit them to the jury. There could be no error in refusing to submit all of these interrogatories, for some of them did not call upon the jury to find specially upon particular questions of fact, but asked for the decision of questions of mixed law and fact; and by one they were asked to give the items of the finding for the plaintiff and the amount allowed him in each
Among the instructions given to the jury was the following: “The law requires that persons who meet on the highway shall keep to the right. This, however, does not give a person a right to keep to the right of the road regardless of consequences. It simply means that his duty is to keep to the right unless he has some warning to indicate to him that he must take some other course to protect himself, or to avoid injury to others.” The case on trial, as shown by the pleading’s and the evidence, involved a collision of a bicycle, ridden by the appellee, with one of the horses drawing the •appellant’s wagon, and driven by its servant, upon a public highway. The jury would understand the instruction to relate to the meeting of such vehicles upon the highway, and to the rule that each of them should keep to his own right-hand side of the other. With such understanding, there was no available error in giving the instruction.
Among the instructions asked by the appellant, and refused, was the following: “The law of the road requiring people in towns traveling on highways to turn to the right does not apply to crossings.” The law of the road to which this instruction expressly relates is a rule to be observed by travelers meeting each other upon a public highway, and it applies to persons who meet each other at any part of a highway, whether at' a crossing or elsewhere. So, leaving out any question as to whether the instruction was not sufficiently precise as to the travelers affected by the rule, and also leav
The evidence affecting the question of negligence on the part of each party was conflicting, and the case presented by the evidence was peculiarly within the province of the jury. The judgment is affirmed.