142 Ind. 164 | Ind. | 1895
The appellant sued the appellee for damages laid in his complaint at $5,000.00, resulting from the alleged negligence of the appellee.
The issues formed upon the complaint were tried by a jury, resulting in a verdict and judgment for the defendant, over appellant’s motion for a new trial. The action of the circuit court in overruling that motion is assigned for error.
The injury complained of was received by the appellant while engaged in his duties as an employe of appellee in its coal mine, by a stone falling on him from the roof of the entrance thereto. The negligence charged against the appellee was permitting said roof to remain in an unsafe and dangerous condition, under which appellant had to pass in going to and returning from his work in appellee’s coal mine.
The appellant asked of his witness, one Nicoson, while on the stand, the following question, to-wit: “Was there any conversation there between you and Mr. Cox, or any other parties present?” Appellee’s counsel objected to the question on the ground that no conversation of Mr. Cox or others at that time could affect the defendant. Thereupon, ‘ ‘ the plaintiff offered to prove by this witness, that Cox, then and there, in a conversation had by and between said Cox and the witness, admitted that he had been notified by the witness of the dangerous condition of the roof as aforesaid, and further -offered to follow up this testimony, and prove by other testimony, that the place so pointed out was the identical place where plaintiff was injured,” and the court sustained the objection.
-There was no showing, or offer to show, that either Cox or Nicoson, or any body else engaged in the conversation proposed to be proven, bore any relation what-. ever to the appellee, so as to make such conversation binding on, or admissible against, the appellee. As offered, the conversation had nothing to rescue it from the objection that it was mere hearsay evidence. It is
The fourth and last reason assigned in the motion for a new trial is the giving of certain instructions asked by the defendant. These instructions do not purport to be all the instructions given in the cause, nor does the record show that they are. Out of the whole series of Nos. 3, 4, 5, 6, 7, 8, 10 and 12 given, only the 3dy 5th, 6th, 7th and 8th, are objected to in argument by the appellant. As was said in Cooper v. State, 120 Ind. 377, page 381, that “While it appears that the court gave certain instructions, set out in a bill of exceptions, it does not affirmatively appear either by implication or by a direct statement to that effect, that the instructions set out in the bill were all that were given.. In the absence of such affirmative statement, or something from which the fact could be implied, we could not reverse a judgment unless an instruction com
We have carefully examined the instructions complained of, and find many of them correct in the abstract and as applied to the case made by the evidence, and the others not so radically wrong as to be incurable by other proper instructions. As was said in Marshall v. Lewark, 117 Ind. 377, at page 379, “When, therefore, one or more instructions appear in the record, which, if properly explained and adapted to the case by other instructions, would or might be correct, we will presume that the necessary explanations or qualifications were made by the court, and unless the instructions given were so palpably erroneous as that no supposable instruction would have made them correct, a reversal will not follow, even if some inaccuracies appear in the instructions upon which error is predicated. ” To the same effect are Clore v. McIntire, Admr., 120 Ind. 262 ; Grubb v. State, supra ; Cooper v. State, supra; Puett v. Beard, supra; Cline v. Lindsey, 110 Ind. 337. There was, therefore, no available error in giving the instructions mentioned, and hence no error in overruling the motion for a new trial.
The judgment is affirmed.