Chicago, Indianapolis & Louisville Railway Co. v. Cunningham

Decision Date16 December 1903
Docket Number4,469
Citation69 N.E. 304,33 Ind.App. 145
CourtIndiana Appellate Court

Rehearing denied May 12, 1904.

From Washington Circuit Court; W. H. Paynter, Special Judge.

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


E. C. Field and H. R. Kurrie, for appellant.

S. H. Mitchell, E. C. Mitchell, C. M. Bright and F. P. Cauble, for appellee.



The precipe attached to the transcript filed in this court is entitled "George B. Cunningham, administrator of the estate of Enoch Morris, deceased, v. Chicago, Indianapolis & Louisville Railway Company. The plaintiff, as shown by the record, was Jacob Cunningham, administrator, etc. The assignment of error 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 seven of the act of 1903 (Acts 1903, p. 338). 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 precipe 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 precipe 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. § 661 Burns 1901; Barnes v. Pelham, 18 Ind.App. 166 at 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 serious illness in 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 18 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, etc., R. Co., 21 Ind.App. 675 at 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 occur within 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 employes to pass and repass over the tracks in said yard in going to and returning from their employment, such use being made with its knowledge and consent. That on November 24, 1900, in...

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1 cases
  • Chicago, I.&L. Ry. Co. v. Cunningham
    • United States
    • Indiana Appellate Court
    • December 16, 1903
    ... ... , 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 ... ...

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