Chicago & Eastern Illinois Railroad Co. v. Ostrander

• Decision Date: 12 December 1888
• Docket Number: 13,012
• Citation: 19 N.E. 110,116 Ind. 259
• Parties: The Chicago and Eastern Illinois Railroad Company v. Ostrander
• Court: Indiana Supreme Court

19 N.E. 110

116 Ind. 259

The Chicago and Eastern Illinois Railroad Company v. Ostrander

No. 13,012

Supreme Court of Indiana

December 12, 1888

Original Opinion of January 21, 1888, Reported at: 116 Ind 259.

OPINION

Niblack, J.

Complaint is made that we erred in holding that the argument submitted against the correctness of certain instructions given to the jury, was insufficient to require us to review those instructions, and for that reason, as well as for alleged errors in giving two of the instructions referred to, we are asked to grant a rehearing in the cause. Counsel for the appellant, in their original brief, said: "We believe the court below erred and misled the jury by giving instructions Nos. 17, 18, 19, 20 and 21 asked for by the appellee. In each of these instructions the court tells the jury that the use of wood in coal-burning engines, except in kindling fire before starting out, is negligence on the part of a railroad company."

They then quoted from instruction No. 19, in which the jury were told: "And if you further find that wood was used on said engine, except such as was necessary as kindling before starting out, instead of coal, then such use of wood would be negligence."

They also quoted from instruction No. 21, to the effect that if the engineer had timely notice "that his engine was to haul said train, it was his duty to have had sufficient fire to make steam without injury to property along the right of way," and that his failure to do so was negligence. They thereupon made the point that the court, in giving said instructions 19 and 21, invaded the province of the jury by making the propositions announced matters of law instead of questions of fact for the jury to decide, and consequently erred. In support of the point thus made, counsel quoted from Small v. Chicago, etc., R. R. Co., 50 Iowa 338, where it is said that "We regard it as sufficient if railroad companies employ the best known means and methods. What lies beyond the known it is not the province of courts or juries to consider."

We have frequently held that where several instructions have been given in a cause, they must, upon an appeal to this court, be considered as a whole, and that is undoubtedly the correct general rule. It is also a well recognized rule that in construing a sentence or clause constituting a part of an instruction, the context must be taken into consideration, so that all the parts ...