City of Evansville v. Thacker

• Decision Date: 29 September 1891
• Citation: 28 N.E. 559,2 Ind.App. 370
• Parties: City of Evansville v. Thacker.
• Court: Indiana Appellate Court

2 Ind.App. 370

28 N.E. 559

City of Evansville

v.Thacker.

Appellate Court of Indiana.

Sept. 29, 1891.

Appeal from superior court, Vanderburgh county; Azro Dyer, Judge.

Mary W. Thacker sued the city of Evansville for damages for personal injuries occasioned by a defective sidewalk. Judgment for plaintiff for $600. Defendant appeals. Affirmed.

John Brownlee, for appellant. C. L. Wedding, for appellee.

BLACK, J.

The appellee, Mary W. Thacker, sued the appellant to recover damages for personal injury occasioned by the appellee's slipping and stepping into a dangerous hole in a wooden street crossing, whereby the appellee was thrown down and against a certain flag-pole and braces attached thereto, which constituted an obstruction of the street. An issue, formed by a denial of the complaint, was tried by jury. There was a general verdict for the appellee for $600. The appellant's motion for judgment on answers returned by the jury to interrogatories, and its motion for a new trial, were overruled.

We will examine the questions to be decided in the order in which counsel have discussed them. The first matter in dispute relates to the overruling of an objection to a question to a witness asked by the appellee. Of this it is sufficient to say that no ground of objection was stated to the court. Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234, and cases cited. At the close of the testimony of the same witness the record, not stating that there was any cross-examination of the witness, shows that the appellant offered to prove by said witness a certain fact stated; that the appellee objected; and that the objection was sustained. It does not appear that the witness was asked any question by the appellant. Where a party, having himself produced a witness, or having adopted as his own a witness first produced by his adversary, desires to make an offer of proof by such witness, he must first propound a pertinent question to the witness, and the offer should be in some form a statement to the court that the witness, if permitted to answer the question, will testify to a certain specified fact. Judy v. Citizen, 101 Ind. 18; Higham v. Vanosdol, Id. 160; Beard v. Lofton, 102 Ind. 408, 2 N. E. Rep. 129; Ralston v. Moore, 105 Ind. 243, 4 N. E. Rep. 673; Morris v. Morris, 119 Ind. 341, 21 N. E. Rep. 918; Smith v. Gorham, 119 Ind. 436, 21 N. E. Rep. 1096. On cross-examination it might sometimes thwart a proper purpose if counsel, upon objection made by adverse counsel to a question asked, could be compelled to state the object of the question in the presence of the witness; and it is to be expected that counsel cross-examining a witness will not be able, ordinarily, to state to the court that the adverse witness will testify to a particular fact. An offer of proof belongs naturally to an examination in chief. How a particular matter is to be elicited from a witness, by what form of question it is to be drawn out, is important, and must always appear in the record, to save any question concerning the exclusion of such matter. The rule requiring that a party, in order to save an exception to the exclusion of testimony, shall state that the witness will testify to a fact specified, does not apply to cross-examination. Heagy v. State, 85 Ind. 260. In the case before us, the examination in chief of the witness by the appellee having ended, if a question proper for cross-examination had been asked by the appellant it would not have been necessary for the appellant to state to the court what the witness would testify, in order to save an exception to the action of the court if it had sustained an objection to the question; but, whether it be on examination in chief or on cross-examination, no exception can be saved to the exclusion of testimony if the record does not show a pertinent question to the witness.

The next subject of dispute relates to an offer of the appellant to prove certain matters by one of its own witnesses. It does not appear what, if any, question to the witness preceded the offer, or that the appellant showed the court that the witness would testify to any particular fact.

In discussing the question of the sufficiency of the evidence, counsel for appellant has directed our attention to certain evidence tending to prove that the hole into which the appellee stepped had been repaired by the city a short time before the injury to the appellee. There was, however, evidence of a contrary tendency, and we cannot interfere to determine the...