36 Ind. App. 202 | Ind. Ct. App. | 1905
Appellee recovered judgment in the court below against appellant in the sum of $2,500 for personal injuries alleged to have been received by her on the 25th day of July, 1903, by reason of having been negligently thrown from the platform of one of appellant’s cars on Jefferson street, in the town of Mooresville.
Appellant assigns as error the action of the court in overruling its motion for a new trial. The grounds for a new trial argued are newly-discovered evidence, and the giving of instructions three, six and sixteen by the court of its own motion.
The act of negligence charged in the complaint is “that defendant negligently started said car when plaintiff was in the act of stepping from the rear platform thereof onto the steps of said car, and, by reason of said starting, this defendant negligently threw this plaintiff with great force and violence against the corner of said car and onto the ground,” etc.
A new trial will not be granted on account of newly-discovered evidence which is merely cumulative. Remy v. Lilly (1899), 22 Ind. App. 109, and cases cited.
The witnesses introduced by appellant were certainly in a position to notice the presence of appellee’s child, but they were not interrogated upon the subject.
It is earnestly argued by counsel for appellee that proper diligence was not shown to secure said new evidence. As the newly-discovered evidence was cumulative, we need not decidé whether proper diligence was used to secure' it.
Citizens St. R. Co. v. Twiname (1887), 111 Ind. 587, is directly in point. An' exception was taken to an instruction given by the trial court in which the word “materially” was used as qualifying the negligence of the plaintiff. The court says: “But the point is also made that the court erred in the concluding part of its fourth instruction in limiting what ought to be considered as contributory negligence to such negligence as may have directly and materially contributed to the infliction of the injuries complained of. This point is based upon the alleged ground that so high a degree of contributory negligence is not required to defeat an action like the one under consideration. Beach, in his work on Contributory Negligence, page 7, says: ‘Contributory negligence, in its legal signification is such an act or omission on the part of a plaintiff, amounting to the want of ordinary care, as, concurring- or cooperating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. To constitute contributory negligence there must be a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the injury.’ To make such a want of care a proximate cause of an injury, it must, according- to this well-considered definition, contribute directly and materially to the infliction of the injury. To constitute it a proximate cause it must, in the nature of things, have some direct and material relation to the injury, and such has been our construction as to the degree of contributory negligence necessary to defeat an action like this. Toledo, etc.,
In Indianapolis, etc., R. Co. v. Wright (1864), 22 Ind. 376, the following language is used: “It is pretty hard to settle upon any set formula of words that will in every case, that may arise, show the nonliability of a defendant because of the acts of the plaintiff in regard to the same injurious act. When there is mutual negligence, if the defendant can not avoid the accident by reasonable care and skill, we suppose the plaintiff can not recover; also where the negligence of the plaintiff is proximate, and directly and materially contributes to the result, and the defendant can not by ordinary care avoid the accident.” Counsel for appellant cite cases from other states that seem to sustain their position, but in this jurisdiction the question is settled adversely to appellant’s claim.
Judgment affirmed.