170 Ind. 428 | Ind. | 1908
Appellee recovered a judgment of $9,000 on account of personal injuries received while in appellant’s employ from the falling of an elevator. The complaint charged appellant with negligence: (a) in failing to inspect properly, and to keep in good working order the elevator, and in using a hoisting rope thereon that was worn and partly broken; (b) in violating an ordinance of the city of Indianapolis which required all counterweight and hoisting cables used in elevators to be metallic with hemp centers; (c) in violating an ordinance of said city requiring every cable-hoisted elevator car, or platform, that runs in grooves, to be provided with an approved safety device that would prevent the car from falling in ease of a break in the cable or machinery; (d) in failing to keep the safety device provided in proper working condition, and suffering the “dogs” thereon to become rusty and the spring to become too weak and rusty to operate the dogs; (e) in violating an ordinance of said city requiring a metallic capacity plate to be fastened in a conspicuous place
' The overruling of appellant’s motion for a new trial is the only error assigned.
The grounds of the motion for a new trial are that the verdict is not sustained by sufficient evidence and is contrary to law; that there was misconduct on the part of appellee, irregularity and error of law at the trial, (a) in asking the jurors upon their voir dire whether any of them or any member of their families was interested as stockholder, officer, agent or employe of any accident insurance company, and (b) in asking Bernard O’Connor, secretary and treasurer of appellant company, upon cross-examination (1) whether at the time of the accident appellant did not have insurance which included the bill of Dr. Oliver for services rendered to appellee on account of his injuries, (2) whether he did not pay such bill for the insurance company; and (3) whether appellant had not been reimbursed for the sum paid on this bill; that there was error in refusing to permit Bernard O’Connor to state what John Cryan said while inspecting the elevator as to what he intended to do in that connection; and that there was misconduct on the part of the jury in returning untrue answers to certain interrogatories.
The complaint alleged that on account of his injuries appellee had been put to great expense for doctor’s bills, medicines and nurse hire, but no proof was offered in his behalf of payment of or liability for, any specific bills of this character. It appeared incidentally that appellee had been confined in the hospital and had received medical attention, and in this state of the record appellant proved by Mr. O’Con-nor that it had paid the bills so incurred. Appellee’s counsel insist that since appellant opened the door to this collateral inquiry appellee had a right to enter; and appellant having sought to gain undue favor with the jury in this way cannot complain of the attempt to cross-examine and break the force of this influence, and at the same time contradict the statement of the witness as originally made and thus affect his credibility. We are not required to decide whether
It is contended that the declaration offered was material and admissible as part of the res gestae. The general rule governing the admission of declarations as a part of the res gestae is that such declarations must be contemporaneous with the principal fact, or so near in point of time that they must be regarded as part of the principal transaction, and so immediately and closely connected therewith in this respect as to be practically inseparable and serviceable to a clear understanding of the matter in question. Note to People v. Vernon (1869), 95 Am. Dec. 49, 57; 24 Am. and Eng. Ency. Law (2d ed.), 664, 666. An assertion or declaration respecting a future event is not ordinarily admissible upon, the principle of res gestae unless it tends to reveal motive, intention or mental condition, and thus to unfold the nature and quality of the main fact. No such explanation was required in connection with the testing of the safety device, as that act was self-explanatory. John Cryan testified as a witness, and explained the way in which he tested the safety device; and Mr. O’Connor corroborated him by showing that he saw the test made up to the point of supporting the elevator platform with a block of wood. The mere state
The evidence was overwhelming and undisputed from examinations made immediately after the accident that the cable was so affected by rust that several strands of wire were'eaten in two at the point where it parted,'and the dogs on the safety device were so rusted as to be immovable except
The judgment is affirmed.