Chestnut v. Southern Indiana Railway Co.

• Citation: 62 N.E. 32,157 Ind. 509
• Decision Date: 10 December 1901
• Docket Number: 19,578
• Parties: Chestnut v. Southern Indiana Railway Company
• Court: Supreme Court of Indiana

62 N.E. 32

157 Ind. 509

Chestnut v. Southern Indiana Railway Company

No. 19,578

Supreme Court of Indiana

December 10, 1901

From Lawrence Circuit Court; W. H. Martin, Judge.

Action by Lafayette Chestnut against the Southern Indiana Railway Company for damages on account of personal injuries. From a judgment for defendant, plaintiff appeals.

Affirmed.

J. R East, R. H. East and McHenry Owen, for appellant.

F. M Trissal, T. J. Brooks and W. F. Brooks, for appellee.

OPINION

Jordan, C. J.

Action below by appellant to recover for personal injuries sustained while in the service of appellee in its yards at the city of Bedford. The injury in question is attributed to a defective brake staff, which, when being handled by appellant, broke near the ratchet wheel, and thereby he was thrown from the car and severely injured. The complaint charges the negligence of the appellee to be as follows "That the defendant was negligent and careless in this, to wit: That in the construction, the brake staff on car number 814, and the one which caused the injury hereinafter alleged, was made of inferior metal, and had been slightly bent above the ratchet wheel, and that said brake staff so constructed had at some time prior to said date been cracked, and had a flaw in it which rendered it easily broken and dangerous to defendant's employes, in attempting to set the same; that for three months prior to said date defendant knew, or with a reasonable inspection could have known, that said brake staff was made of defective material; had a flaw in the staff; that it was cracked almost entirely across, leaving but a small part of the staff attached together; that it was wholly unfit for the use it was put to on said car, and that its use in its condition was dangerous, unsafe to defendant's employes, etc.," The absence of knowledge of all of these matters on the part of plaintiff is alleged in the complaint. Damages in the sum of $ 20,000 are demanded.

The complaint was held sufficient on demurrer and appellee answered by a general denial. On December 22, 1900, the cause was submitted to a jury for trial, and a verdict in favor of the appellee was returned, together with answers to a series of interrogatories submitted to the jury by the court. Motions by appellant for judgment on the answers to the interrogatories, and for a new trial, were each denied, and judgment for costs was rendered against him. The errors assigned are based on the rulings denying these respective motions.

The principal points which counsel for appellant seek to have reviewed relate to the giving of certain instructions and to the admission and exclusion of certain evidence. The original bill of exceptions containing the original longhand manuscript of the evidence, together with the rulings of the court in admitting and excluding evidence, has been certified to this court as a part of the record in this appeal. The transcript discloses that appellant, by his counsel, filed in the office of the clerk of the lower court a precipe which is appended to the record, whereby he requested and directed that the clerk make out and certify a transcript of the proceedings and record, as follows: "Lafayette Chestnut v. Southern Indiana Railway Company, Lawrence Circuit Court. The clerk of the Lawrence Circuit Court will prepare and certify a full, true, and complete transcript of the proceedings, papers on file, and judgment in the above entitled cause, to be used on appeal to the Supreme Court. East, East & Owen, attorneys for plaintiff." Immediately after this precipe appears the general certificate of the clerk, which is as follows: "Certificate to transcript. State of Indiana, Lawrence county, ss: I, Isaac H. Crim, clerk of the Lawrence Circuit Court of said State, do hereby certify that the above and foregoing transcript contains full, true, and complete copies of all the papers and entries in said cause. In witness whereof I hereunto set my hand and affix the seal of said court, at the city of Bedford, Indiana, this 29th day of January, 1901. Isaac H. Crim, clerk Lawrence Circuit Court." Following this certificate appears what purports to be the original bill of exceptions embracing the evidence given upon the trial and also purporting to exhibit the rulings of the court in admitting and rejecting certain evidence. To this bill the clerk has attached a special certificate whereby he certifies that such bill of exceptions is the original which was filed in his office "and is now incorporated into and made a part of the record in said cause without copying."

Under the rule asserted and enforced in Johnson v. Johnson, 156 Ind. 592, 60 N.E. 451, the evidence and the rulings of the court in admitting and excluding testimony are not properly before us, and cannot be considered in this appeal for any purpose. In Johnson v. Johnson, supra, this court said: "Only such papers and entries as are designated in said precipe are properly a part of the record on appeal. Said precipe did not direct or request the clerk to certify to this court said original bill of exceptions containing the evidence, in any manner. Under such conditions if said original bill of exceptions containing the evidence was embodied in the transcript, and properly authenticated, the same would not be a part of the record and could not be considered. McCaslin v. Advance Mfg. Co., 155 Ind. 298, 58 N.E. 67, and cases cited; Brown v. Armfield, 155 Ind. 150, 57 N.E. 722."

By the act of 1897, Acts 1897, p. 244, § 638a Burns 1901, the clerk of the lower court is authorized to certify to this court on the appeal of a cause the original bill of exceptions containing the evidence and the rulings of the court in respect to the admission and rejection of evidence etc., instead of a copy thereof only upon the request of the appealing party. Adams v. State, 156 Ind. 596, p. 600, 59 N.E. 24 of the opinion. In fact, this is the plain wording of the statute of 1897, supra, and is not open to construction. It is expressly disclosed by the precipe in this case that appellant directed the clerk below to prepare and certify a "full, true, and complete transcript of the proceedings, papers on file, and judgment in the above entitled cause, to be used on appeal to the Supreme Court." Under the directions given to the clerk in the precipe in question it became his duty to certify to this court a transcript or copy of the original bill of exceptions containing the evidence and the rulings of the court in the admission or exclusion of testimony, and his act in certifying the original bill was, under the statute, unauthorized. Where the clerk of a trial court has certified to this court on appeal of a cause the original bill of exceptions embracing the evidence, we will presume that the clerk has done so upon the request of the appealing party in discharge of the duty enjoined upon him by the statute in question, in the absence of anything appearing in the record to the contrary. But we can indulge in no such presumption in this case in the face of the positive direction or request of the appellant appearing herein, to the effect that a...