Chicago, I.&L. Ry. Co. v. Cunningham

Decision Date16 December 1903
Citation69 N.E. 304,33 Ind.App. 145
CourtIndiana Appellate Court


Appeal from Circuit Court, Washington County; W. H. Paynter, Special Judge.

Action by George B. Cunningham, administrator of the estate of Enoch Morris, deceased, against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

E. C. Field and H. R. Kurrie, for appellant. Mitchell & Mitchell, C. M. Bright, and F. R. Cauble, for appellee.


The præcipe attached to the transcript filed in this court is entitled, Geo. B. Cunningham, Administrator of the Estate of Enoch Morris, Deceased, v. The Chicago, Indianapolis & Louisville Ry. Co. The plaintiff, as shown by the record, was Jacob Cunningham, administrator, etc. The assignment of errors names Jacob Cunningham, administrator, as appellee. The original bill of exceptions, containing the evidence, is incorporated into the transcript. The certificate of the clerk of the Washington circuit court, attached to the transcript, accords with the form specified in section 7 of the act of 1903 (Acts 1903, pp. 340, 341, c. 193); Black, Interp. of Laws, § 106. By the provisions of that act, the original bill of exceptions, containing the evidence, becomes a part of the record, when so certified, whether named in the præcipe or not. The evidence is therefore a part of the record. If appellee's contention be granted, the utmost that could follow would be that no præcipe is shown in this case, in which event it became the duty of the clerk to make out and certify a complete transcript of the record. Section 661, Burns' Rev. St. 1901; Barns v. Pelham, 18 Ind. App. 166-168, 47 N. E. 648;Reid v. Houston, 49 Ind. 181.

The regular judge of the Washington circuit court was unable to preside at the trial of this cause on the day set therefor, because of the serious illness of his family, and by agreement of the parties a special judge was appointed, who thereafter acted therein. The verdict was returned January 3, 1902. January 18th was the last day of the term, and at that time the special judge was ill and unable to attend. In this action the regular judge resumed jurisdiction for the purpose of making the record show the filing of appellant's motion for a new trial, which was then filed. The practice so followed was proper. He was not disqualified in the case. Hadley v. Lake Erie R. Co., 21 Ind. App. 675-680, 51 N. E. 337;Perkins v. Hayward, 124 Ind. 445, 24 N. E. 1033.

The complaint was in three paragraphs. The parties agree that the negligence charged against appellant in the first paragraph arose from its alleged failure to observe an ordinance of the city of Lafayette requiring certain precautions in the running of railroad trains. The answers to the interrogatories show that the accident did not occurwithin the corporate limits of said city. The finding is sufficient to show that the verdict is not based upon the first paragraph. Olds v. Moderwell, 87 Ind. 582. The second and third paragraphs do not differ in such manner or to such extent as to affect the questions presented at this time. The substance of them both is that the appellant had a switch yard, operated in connection with its railroad, and had for a long time permitted its employés to pass and repass over the tracks in said yard in going to...

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