186 Ind. 384 | Ind. | 1917
The first question presented by this appeal arises out of the action of the trial court in overruling appellant’s demurrer to the second paragraph of appellee’s complaint, on which the case was tried. It appears from that pleading, in substance, that on November 15, 1905, appellant was in possession of, and engaged in operating, an electric street railway system on and over certain of the public streets in the city of New Albany, including what is known as upper Eleventh street; that on said date appellee, a minor child, “was being carried and was traveling in a vehicle commonly called a ‘surrey’, drawn by one horse, driven by an experienced and competent driver, going northward on said street; that, at a point on said street near the intersection of the same with Ekin Avenue, another of the public streets of said city, said horse became frightened at some object and unmanageable, and backed said vehicle onto or so near said railroad track that a moving car could not pass it without coming in contact with said ‘surrey’; that at the same time, one of the electric cars of the defendant, in charge of a motorman, was going northward on said track on said Eleventh Street, and, when said car was within a short distance of said vehicle, to-wit: twenty feet, said horse continued backing said vehicle toward and onto said track; that said motorman thereupon brought his car to a full stop, but, while said horse was still backing said vehicle, and while said vehicle was yet on said track, or so near thereto that said car could not pass without striking it, as said motorman might then and there have discovered by the exercise of ordinary care, said motorman carelessly and negligently turned on the electric current and started his car at such a rate of speed that he could not readily control or stop the same; and that, by reason of the carelessness and negligence of said motorman, and his inability to stop said car, it
It appears from appellant’s special bill of exceptions No. 4 that near the close of the third day of the trial, and at a time when the defense was about ready to rest its case, it developed that two of appellant’s witnesses, although properly subpoenaed prior to the commencement of the trial and in attendance during the first two days, were then absent from the courtroom. Appellant objected to the introduction of evidence in rebuttal without granting it an opportunity to present the evidence of the witness Cashman, and the court, although directing that the hearing of evidence in rebuttal should proceed, stated to the parties that the testimony of appellant’s witnesses would be heard the next morning if they were in attendance. An attachment for the witness Cashman was at once ordered by the court and delivered to the sheriff of Floyd county, where Cashman resided, with instructions to have him present in the courtroom at nine- o’clock the next morning. The witness did not appear, however, and the sheriff had not returned the attachment when the hearing of the evidence in rebuttal was concluded at eleven o’clock, whereupon appellant objected to the closing of the case without the attendance of -said Cashman. Proof was made that the witness had received the proper mileage and fees for attendance on, the third day of the trial and that his absence on that day and the day following was not caused or connived at by appellant in any way, but the objection was overruled and the case proceeded to argument. This ruling is presented for review.
The record presents no substantial error and the judgment of the trial court is therefore affirmed.