Cincinnati, H.&I.R. Co. v. Cregor

• Decision Date: 08 June 1898
• Citation: 150 Ind. 625,50 N.E. 760
• Parties: CINCINNATI, H. & I. R. CO. v. CREGOR.
• Court: Indiana Supreme Court

150 Ind. 625

50 N.E. 760

CINCINNATI, H. & I. R. CO.

v.CREGOR.

Supreme Court of Indiana.

June 8, 1898.

Appeal from circuit court, Marion county; H. C. Allen, Judge.

Action by Aurilla Cregor, administratrix of the estate of Theodore Cregor, deceased, against the Cincinnati, Hamilton & Indianapolis Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

R. D. Marshall, Ben L. Smith, Claude Cambern, and Donald L. Smith, for appellant. W. L. Taylor and Floyd A. Woods, for appellee.

MONKS, J.

This action was brought by appellee, administratrix of the estate of Theodore Cregor, deceased, to recover damages for an injury causing the death of the said deceased. The complaint was in four paragraphs, and appellant's demurrer to each paragraph for want of facts was overruled. The cause was tried by a jury, and a special verdict returned; and, over appellant's motion for a new trial, judgment was rendered thereon in favor of appellee. The errors assigned, and not waived, call in question the action of the court in overruling appellant's demurrer to the second and third paragraphs of complaint, and in overruling the motion for a new trial.

It is conceded by appellant that the first and fourth paragraphs of complaint are sufficient; and as the facts found in the special verdict are applicable to, and within, the issues joined on these paragraphs, the error, if any, in overruling the demurrer to the second and third paragraphs, was harmless.

It is assigned as one of the causes for a new trial that the court erred in giving instructions 3 and 4 to the jury. To render this specification available as a cause for a new trial, both of said instructions must be incorrect. Lawrence v. Van Buskirk, 140 Ind. 481, 482, 40 N. E. 54, and cases cited; Saunders v. Montgomery, 143 Ind. 185, 41 N. E. 453, and cases cited. In instruction 4, after admonishing the jury that they were the sole judges of the facts and the credibility of the witnesses, and stating their duty in reconciling the evidence if there was a conflict, and what they had a right to consider in determining the credibility of a witness and the weight of his evidence, the court said, “And in this inquiry you can call to your aid that knowledge of men and their actions which, in your experience, you have acquired by mingling with men.” Appellant insists that the part of the instruction set out was erroneous, for the reason that “the jury is bound by what takes place at the trial, and not on any outside information or knowledge they may have acquired.” Jurors are not authorized to consider any evidence except such as is given at the trial, but they have the right to test its truth and weight by their general knowledge derived from experience and observation in their relations with others. An instruction substantially the same as the one in controversy was approved by this court in Electric Co. v. Branham, 145 Ind. 314, 41 N. E. 448, at page 322, 145 Ind., and at page 451, 41 N. E. The court in that case said: “The school of experience which men attend in their varied relations among men imparts a keenness of mental vision which enables them the more readily to see the motives, and to judge of the selfish or unselfish interests, of men. This education, be it much or little, is a part of the juror, and should not, if possible, be laid aside in passing upon the inducements which may surround a witness to speak falsely. It is this education which, to a great extent, enables a juror to discover, in the faltering manner or the downcast eye, whether the statement of the witness is made in modesty, or in the guilt of falsehood. The value of experience is not to be given up when the man becomes a juror, and is required to apply the tests of credit to the heart and mind of the witness; but whatever qualifications that experience gives should be employed, to the end that the whole truth may be known and acted upon.” It is clear that the court did not err in giving the fourth instruction. As one of said instructions was good, the motion for a new trial for this cause must fail. Lawrence v. Van Buskirk, supra. We need not, therefore, determine as to the correctness of instruction 3.

The jury answered interrogatories 12 and 13, “Evidence don't show.” Before they were discharged, appellant filed its motion to require the jury to answer said interrogatories “affirmatively or negatively,” which motion the court overruled. Appellant has not called our attention to any evidence upon which the...