Cleveland, C., C. & St. L. Ry. Co. v. Moore
| Decision Date | 01 May 1908 |
| Docket Number | No. 20,995.,20,995. |
| Citation | 84 N.E. 540,170 Ind. 328 |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. MOORE. |
| Court | Indiana Supreme Court |
On petition for rehearing. Petition denied.
For former opinion, see 82 N. E. 52.
In his brief on petition for rehearing counsel for appellee, while stating that it is apparent from the opinion that this case has received painstaking consideration, suggests that it seems that the opinion and judgment of this court proceeds largely, if not entirely, on grounds not presented. So far as the examination of the testimony set out in the record is concerned, it may be admitted that our consideration has gone beyond the briefs; but our action in that particular was prompted, not by a purpose to search for grounds of reversal, but, because the intricate and perplexing questions of fact made a study of the transcript of the evidence necessary to an understanding of the facts, we were compelled to study the bill of exceptions, and, having done so, we were not at liberty to disregard what our eyes perceived as to the facts in their true relation to each other. Where resort to the record is necessary, the case will be determined by the record, and in such a case the court will not regard itself as bound down to the conceptions of counsel on either side as to the nature of the controlling facts. Big Creek Stone Co. v. Seward, 144 Ind. 205, 42 N. E. 464, 43 N. E. 5;Scott v. City, 162 Ind. 34, 68 N. E. 278, 69 N. E. 675;State ex rel. v. Board, 167 Ind. 276, 78 N. E. 1016. As to our observations upon the case generally, we may say, in the language of Big Creek Stone Co. v. Seward, supra, that: “If the court were limited to the argument and reasoning of counsel in its decision of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court.”
In the brief referred to counsel calls attention, among other matters, to what is claimed are inaccuracies in the court's statement as to the height of the grade put in by the surety company, and as to where work was done by it, as to the misleading effect of the prior work done by McNerney, of changes supposed to have been required by the railroad company on account thereof, and of the representations made while the work was in progress. Without going to the transcript of the evidence, which is very long and at times difficult to understand, we may admit, for the sake of the argument, that we have been under a misapprehension to the extent suggested by counsel; but an examination of the original opinion will show that we by no means rest our conclusion on the matters referred to, and we should not be understood as holding that the surety company prima facie stands charged with the...
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