157 Ind. 216 | Ind. | 1901
Appellee recovered a judgment against appellant for $7,250 for wrongfully causing the death of her intestate. Appellant assigns that the court erred in overruling its motion to require each paragraph of complaint to be made more specific, its demurrers to the first and second paragraphs of complaint, and its motion for a new trial.
The motion to make more specific is not' in the record. The clerk has copied the motion into the transcript as a part of the proceedings of the day on which the motion was filed. After the motion was overruled, time was given in which to file a bill of exceptions. The bill, as copied by the clerk, does not contain the motion, but refers to the place in the transcript where it had been previously copied. Eo order of court was made that the motion should be a part of the record without a bill of exceptions. The act of the clerk in copying the motion into the transcript, outside of the bill and without order of court, was unwarranted under §662 Bums 1901, §650 R. S. 1881 and Horner 18*97. Only those matters that are already properly in the transcript as a part of the record may be brought into the transcript of a bill of exceptions by reference. Gussman v. Gussman, 140 Ind. 433.
Appellant contends that the evidence fails to establish de
Decedent was not negligent in entering upon the common track. The conductor had charge of the movements of the
Appellant asserts that the court erred in sustaining appellee’s objections to certain questions propounded by appellant to its own witnesses in defense. The record shows that in each instance either no offer to prove was made or the offer came after the objection to the question had been sustained. No question is raised. Gunder v. Tibbits, 153 Ind. 591.
Appellant complains of the court’s refusal to permit appellant to put in evidence certain printed rules of the Monon company. Counsel had a witness identify a Monon book of rules, and then asked if the rules therein were in force at the time of this accident; and the witness answered: “Principally. There may have been some changes. * * *. You would have to go over the records and examine them to see. Some of them have been stricken out. There, for example, is one canceled there. Some have been changed by bulletin orders.” Counsel had the “one canceled there” identified as number 171; but no evidence is pointed out that shows what part of the remaining rules was in force and
Error is predicated on the court’s permitting a witness for appellee to answer, over appellant’s objection, certain questions as to the “rules”, “rules or custom” and “general practice and custom” governing the operation of trains over the track where decedent was killed. The objection was that the rules were printed and were themselves the best evidence of their scope and meaning. The questions all occurred in the same connection. The first question in the context was whether there were any printed rules that applied to the common tracks, and the witness answered, without objection, that he (city yardmaster for the Monon at the time of the collision and for three years before that) had never seen nor heard of any, and that the Monon employes were not supplied with any. The “rules” inquired about were the rules that had become established by usage. The court, in ruling, remarked: “It is probably more a custom than a rule; if it is a well understood custom or rule of operation, I thipk he may answer.” The objection made was not well taken.
The court overruled appellant’s objection to the following question propounded by appellee to her witness Jay, who
The court refused to give certain instructions to the effect
Other instructions were refused which were based upon the theory that decedent was bound to use reasonable diligence for the purpose of learning whether or not appellant’s trains generally ran, or were scheduled to run, over the common tracks in violation of the ordinance and the usages of the tracks, and that, if by reasonable diligence he could have learned of appellant’s general practice to violate the’ordinance and usages of the tracks, he went upon the tracks at his peril. A person may be bound by constructive knowledge of defects in the place where he works, but he certainly is not affected by constructive knowledge of the dangerous habits of third persons whom he meets' on a common highway. What has been said in considering the evidence really disposes of this question. A holding to the contrary would seem to lead to the proposition that a multiplication of iniquities produces righteousness.
The last complaint is of the court’s refusal to give appellant’s instructions to the effect that decedent’s duty to exercise reasonable care did not end with his own compliance with the ordinance and usages of the track, but that he was required to use diligence, under the circumstances, at all times preceding the collision, to avoid injury to himself. This subject was fully covered by instructions given.
Judgment affirmed.