Chicago And Eastern Illinois Railroad Company v. Modesitt

• Decision Date: 03 June 1890
• Docket Number: 14,243
• Parties: The Chicago and Eastern Illinois Railroad Company v. Modesitt
• Court: Indiana Supreme Court

24 N.E. 986

124 Ind. 212

The Chicago and Eastern Illinois Railroad Company v. Modesitt

No. 14,243

Supreme Court of Indiana

June 3, 1890

From the Vigo Superior Court.

Judgment affirmed.

W. H Lyford and L. D. Thomas, for appellant.

I. N Pierce and W. W. Rumsey, for appellee.

OPINION

Elliott, J.

The appellee seeks to recover the value of three horses killed on the track of the appellant, near the village of Atherton, in Vigo county.

The answer of the appellant was not challenged, in any form, in the trial court, and it can not be successfully assailed here for the first time. The statutory provision permitting a pleading to be questioned by an assignment of errors in this court does not apply to answers.

The appellant offered to prove, by expert witnesses, what would be the effect of putting a cattle-guard under the tracks at the place where the horses entered upon the track, and the court excluded the offered evidence. There was no error in this ruling. The appellant was entitled to prove the condition of the tracks, their location, the use made of them, and like facts, but it was not entitled to the opinion of a witness that the construction of a cattle-guard would make the use of the track dangerous. The ruling of the trial court is sustained by the decision in the case of Indiana, etc., R. W. Co. v. Hale, 93 Ind. 79. It is also sustained by the general rule that a witness can not express an opinion upon the point which it is the duty of the jury to determine. The case under consideration is not of the same class as the cases of Louisville, etc., R. W. Co. v. Frawley, 110 Ind. 18, 9 N.E. 594; Carthage Turnpike Co. v. Andrews, 102 Ind. 138, 1 N.E. 364. In the case of Indianapolis, Peru, etc., R. W. Co. v. Crandall, 58 Ind. 365, the evidence offered tended to establish a material fact, and was not a mere expression of opinion. It was for the jury to determine from the facts established by the evidence whether the company was excused from putting in a cattle-guard for the reason that it would make it dangerous to use the track, and it was not a question for opinion evidence.

The case is a close one upon the evidence, and it is probably true that the case made by the appellant is the stronger; but we can not say that there is not evidence sufficient to support the verdict. The burden of showing that the track could not be guarded by cattle-pits, or fences, without endangering the safety...