31 Ind. App. 488 | Ind. Ct. App. | 1902
Tlio complaint avers that appellee’s wife was a passenger on one of appellant’s cars, and desired to alight at a regular stopping place, which fact was known to appellant’s servants in charge of the car; “that just as said Wilhelmina Zerler, plaintiff’s wife, was attempting to alight, and before she was enabled to do so, the said defendant, by and through its agents and officials and employes, without any fault or carelessness on the part of the plaintiff or his said wife, carelessly and negligently started said car with a quick and rapid jerk and movement of said car; that said Wilhelmina Zerler, this plaintiff’s wife, was then and there, without any fault or carelessness or negligence on her part or on the part of the plaintiff, and through the carelessness and negligence and fault of the defendant, its agents and employes, in and by reason of said careless and negligent starting, with a quick and sudden jerk its said car, then and there threw the said Wilhelmina Zerler, plaintiff’s wife, from its said ear violently to the ground and street, and then and there carelessly and negligently, and without any fault or carelessness or negligence on the part of the plaintiff or on the part of his said wife, Wilhelmina Zerler, threw, thrust, and propelled the said Wilhelmina Zerler, plaintiff’s wife, from its said car and to the ground as aforesaid, and then and there carelessly and negligently, and without any fault or carelessness or .negligence on the part of the plaintiff or his said wife,” injured her.
Appellant has assigned as errors, overruling the demurrer to the complaint, and overruling the motion for a new trial.
It is quite true that the facts stated in a complaint must be stated with certainty, and in an action for negligence the negligent act must be stated in such terms as show it to have been the efficient cause of the injury complained of. While the selection of 'the terms used in the complaint might be open to some objection, yet, applying the
It is also argued that error was committed by the trial court in re-reading to the jury a portion of the instructions, but, as this action of the court has not been brought up by any bill of exceptions, no question is presented.
The remaining questions argued are not presented, if, as insisted by counsel for appellee, the evidence is not in the record. Appellant’s motion for a new trial was overruled December Y, 1899, and ninety days’ time given appellant to file its bill of exceptions. On May Y, 1900, the following entry appears: “Now comes the defendant, by counsel, and files its bill of exceptions herein, in these words.” Then follows what purports to be a longhand manuscript of the evidence, and a certificate of the reporter. Following this is the clerk’s certificate, without any seal, that “the above longhand transcript” of the evidence was filed in his office prior to the presentation of the bill of exceptions to the judge on February 13, 1900. Immediately following is this recital: “And thereupon, after all the evidence had been given and introduced by the respective parties in said cause, the defendant tendered to the court its written instructions numbered one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, and thirteen, and asked the court to give the same, and each separate instruction thereof, at the proper time to the jury, but the court refused to give said instructions, or any of
It is apparent from the record that the bill of exceptions in the transcript is a copy of the whole original bill of exceptions, except the manuscript of the evidence is the original manuscript. It seems that the evidence and the instructions were all put into one original bill of exceptions ; that the manuscript of the evidence was taken from this bill and inserted in the transcript, the instructions and all the rest of the original bill being copied. This is so stated in appellant’s brief. The clerk’s certificate shows that the manuscript of the evidence in the transcript is the original manuscript, and not a copy. To bring instructions into the record by a bill of exceptions, the whole original bill containing the instructions must be copied into the transcript. But to bring the original longhand manuscript of the evidence into the record without copying the evidence, the whole original bill of exceptions embracing the evidence must be put into the transcript. The judge’s original certificate is as much a part of such an original bill of exceptions as is the original manuscript' of the evidence. It must necessarily follow that the original manuscript of the evidence and the instructions can not be brought up by one bill of exceptions. Leach v. Mattix, 149 Ind. 146. In the one case it is necessary to bring up the original certificate of the judge, which is an essential part of the original bill, and in the other it must be Copied. The original manuscript of the evidence is not incorporated into a bill of exceptions until the judge has signed the bill, and caused it to be filed. It is this bill the clerk may certify to the appellate court, and not simply the longhand manuscript of the evidence. The statute (§638a Burns 1901) says it shall be sufficient if the transcript contain the original bill of exceptions, embracing all such evidence. “When it is thus incorporated into
As everything in the bill of exceptions, except the evidence, seems to have been copied into the transcript, the bill is sufficient to bring the instructions into the record. But in the absence of the evidence we can not say that the court erred in giving o'r in refusing to give instructions. An examination of the instructions given does not disclose that any of them are erroneous, as more abstract propositions of law, and without the evidence we can not say that they were not applicable to the case made by the evidence. And in the absence of the evidence we must conclude, although an instruction asked for stated the law correctly, that it was refused because it was not applicable to the case made by the evidence.
Judgment affirmed. ..