Cincinnati v. Grames

• Decision Date: 21 June 1893
• Citation: 34 N.E. 613,8 Ind.App. 112
• Court: Indiana Appellate Court
• Parties: CINCINNATI, I., ST. L. & C. RY. CO. v. GRAMES.

8 Ind.App. 112

34 N.E. 613

CINCINNATI, I., ST. L. & C. RY. CO.

v.GRAMES.¹

Appellate Court of Indiana.

June 21, 1893.

Appeal from circuit court, Boone county; J. A. Abbott, Judge.

Action by William Grames, Jr., against the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

John T. Dye, Elliott & Elliott, and Baker & Daniels, for appellant. P. H. Dutch, J. G. Adams, and A. C. Harris, for appellee.

ROSS, J.

The appellee brought this action to recover damages for personal injuriessustained by being struck by one of appellant's trains at a point in Thorntown where Main street intersects appellant's railroad. The cause was tried by a jury, and at the request of the appellee they returned a special verdict, upon which the court, after overruling a motion made by appellant for a new trial, rendered judgment for the appellee. To the ruling on the motion for a new trial, and in rendering judgment on the verdict in favor of appellee, the appellant at the time excepted, and these are the only errors assigned in this court.

Several questions of practice, touching the regularity of the record, have been urged by counsel for appellee in their brief, which it is necessary to consider before taking up for consideration the errors assigned by appellant. The record discloses that the issues were formed, trial had, motion for a new trial made and overruled, judgment rendered for the appellee, and time granted appellant to file bill of exceptions, by and before the Honorable T. J. Terhune, sole judge of the twentieth judicial circuit; that within the time allowed by the court the appellant presented to the Honorable J. A. Abbott, then sole judge of said judicial circuit, his bill of exceptions, which was duly signed by him, and filed as a part of the record in this cause. This court judicially knows who the judges of the courts of general jurisdictions of the state are, and when their terms of office expire; hence itknows that Judge Abbott was the successor of Judge Terhune. A person who has been judge, and presided as such at the trial of a cause, has no power to sign a bill of exceptions, and make the same a part of the record in such cause, after he has ceased to be judge. Smith v. Baugh, 32 Ind. 163;Ketcham v. Hill, 42 Ind. 64;Railway Co. v. Rogers, 48 Ind. 427;Reed v. Worland, 64 Ind. 216.

There is nothing in the contention of appellee's counsel that appellant has waived the right to call in question the action of the court in rendering judgment on the verdict in favor of appellee by filing a motion for a new trial, while the motion of appellee for a judgment was pending, and without waiting for the ruling thereon. The sustaining of the motion of the appellee for a judgment on the verdict did not bar the right of the appellant to apply for a new trial, and by the filing of the motion for a new trial it did not waive its right to an exception to the ruling of the court in sustaining and rendering judgment in favor of the appellee on his motion therefor. The filing of the motion for a new trial by appellant was not equivalent to a concession that, unless a new trial was granted, the appellee was entitled to a judgment on the verdict.

The special verdict returned by the jury is very voluminous, and, besides repeating the samefacts, has embodied in it both legal conclusions and part of the evidence. The material facts found, so far as we are able to determine them, are as follows: That on and previous to the 31st day of August, 1887, the appellant was a railroad corporation owning and operating a line of railroad running from north to south through the town of Thorntown, in Boone county, Ind., intersecting Main street in said town, which street was one of the principal thoroughfares thereof, and in frequent use; and that said town contained a population of about 1,700 persons. That Main street was 100 feet wide, and ran east and west, and intersected appellant's railroad almost at right angles. That at such intersection appellant's railroad consisted of a main track and a side track. The side track, which was about eight feet distant from the main track, and on the west side thereof, extended both north and south of Main street. That on said day there were several box cars standing on the side track, two of which-one on each side of Main street-extended out into the street; the one on the south side projecting into the street up to a plank crossing 16 feet wide, which was placed about the center of the street. That on both sides of the street, from within a few feet of appellant's railroad, and west thereof, were buildings, which obstructed the view of persons approaching the railroad from the west, and very materially interfered with their hearing trains approaching from either direction. That on said day the appellee, who was nearly 14 years of age, in good health, and of ordinary intelligence, and possessed of “perfect eyesight and hearing,” in company with his brother, who was 22 years of age, came into Thorntown from the east at 10 o'clock in the forenoon, “with a load of wheat on a farm wagon drawn by two horses,” driving westward along Main street, crossed over appellant's railroad tracks, and saw the situation and surroundings of the crossing and the position of the box cars, which were then standing on the switch in said street. That in a short time they started to return along Main street, and to recross appellant's tracks, and that when about 50 feet distant from the tracks they stopped their team, and looked and listened for approaching trains, and could not see and did not hear the approach of any. That they stopped for one minute, and while so stopping with said team, and just before and at the time of starting their team towards the railroad crossing, 50 feet distant from where they then were, Richard Grames, the brother, who was and had been driving the team, spoke to the appellee, directing him to keep a watch to the north side, and listen for the locomotives, engines, and cars, while he looked and listened for the locomotives, engines, and cars on the south side. That while the appellee and his brother were sitting on the seat in the wagon, with the horses standing still at said point, and before starting the team of horses, he and his brother looked and listened for the approach to said crossing of any locomotive engine and cars upon appellant's railroad track. That neither the appellee nor his brother heard or saw any locomotive, engine, or cars approaching said crossing, or signal given, or noise of an approaching train, and did not see any signal of warning given by any flagman at the crossing, or any warning given by any one that a locomotive, engine, or cars were approaching the crossing. That immediately after so looking and listening they drove said team of horses and wagon easterly on said Main street to said railroad track at said crossing. That in approaching the railroad crossing from the place of stopping to look and listen, appellee's brother drove said team in a walk, and at no time between said point of stopping and said crossing did he drive faster than a walk. That continuously from the time of starting 50 feet west of the said crossing the appellee and his brother looked and listened for the approach of any locomotive, engine, or train of cars to said crossing on said railroad track up to the time the horses drawing said wagon had passed upon appellant's main track at said crossing. That neither appellee nor his brother saw or heard the approaching locomotive, engine, or train of cars approaching said crossing. That neither appellee nor his brother, in so approaching said crossing, could have seen or heard the approach of appellant's locomotive, engine, or cars by the exercise of their senses of sight or hearing. That as they were driving said team across appellant's track, and while the horses were upon the main track, a train coming from the south, and running at the rate of 30 miles per hour, ran against and upon said team of horses and the wagon in which appellee and his brother were sitting, injuring appellee, etc. That if the box car which projected into the street had not been standing on said side track at said crossing, the appellee and his brother could have seen and heard appellant's locomotive engine and cars approaching the crossing before driving their team of horses upon either the side or main track at said crossing, and in time to have stopped their team before driving upon the main track. It is further found that no whistle was blown or bell rung on said engine before or while approaching said crossing; neither was there any signal of any kind given of the approach of said engine and cars to said crossing; and that, if appellant's servants had caused the whistle to be blown or the bell to be rung, appellee and his brother could have heard it in time to have avoided the injury. It is also found that other streets in said town cross said railroad.

As already stated, the verdict contains many repetitions of the same facts, intermingled with which are extracts from the evidence, as well as many conclusions of law, and for that reason it has been a matter of much difficulty to give a clear statement of the facts. That part of the finding after the jury find that no bell was rung or whistle blown on appellant's engine, where they find that if the bell had been rung or the whistle blown the appellee would have heard them and would have avoided the injury complained of, are conclusions. The law presumes that when a person is apprised of danger, he will not voluntarily throw himself in its way. In determining the legal effect of the facts found we can consider only the ultimate facts, disregarding evidentiary facts, as well as conclusions of law, embraced in the special verdict. A special verdict is that by which the jury find the facts only, leaving judgment thereon to the court.” Section 545,...