Evansville & R.R. Co. v. Henderson

• Decision Date: 25 November 1895
• Parties: EVANSVILLE & R. R. CO. v. HENDERSON.
• Court: Indiana Supreme Court

142 Ind. 596

42 N.E. 216

EVANSVILLE & R. R. CO.

v.HENDERSON.

Supreme Court of Indiana.

Nov. 25, 1895.

Appeal from circuit court, Jackson county; S. B. Voyles, Judge.

Action by Tyre S. Henderson against the Evansville & Richmond Railroad Company for personal injuries. Plaintiff had judgment and defendant appeals. Reversed.

W. R. Gardiner, C. G. Gardiner, and W. R. Gardiner, Jr., for appellant. Zaring & Hottel, Giles & Marshall, and Applewhite & Applewhite, for appellee.

McCABE, J.

The appellee sued the appellant in the Lawrence circuit court to recover damages resulting to him on account of a personal injury sustained by him through the alleged negligence of the appellant. The venue was changed to the Jackson circuit court, where a trial of the issues joined resulted in a verdict and judgment against the appellant for $5,000. That judgment, on appeal to this court, was reversed on the evidence. 134 Ind. 636, 33 N. E. 1021. This court having intimated a doubt of the sufficiency of the facts stated in the complaint, on the return of the cause to the trial court the appellee was permitted, over appellant's objection and exception, to file an amended complaint as to both paragraphs thereof. The issues joined were again tried by a jury, resulting in another verdict for the plaintiff in the same amount on which he had judgment, over appellant's motion for judgment non obstante veredicto and for a new trial. Error is now assigned upon these several rulings, and that the trial court erred in overruling a several demurrer to each paragraph of the amended complaint. One of the reasons assigned in the motion for a new trial is that the verdict is not sustained by sufficient evidence.

It is conceded by the learned counsel for appellee that the former decision of this cause is the law of the case, and is decisive of the case, and must control our decision now upon the question of the sufficiency of the evidence to support the verdict, unless, on the new trial, the appellee introduced material additional evidence of such a character as to make the principles of law announced in the former decision inapplicable to the new case made by the new or additional evidence, considered along with the evidence adduced before. This, we think, is the law. The law declared in the former opinion has been recently reaffirmed by this court, and applied to a similar state of facts, citing many other adjudications to the same effect, in Railway Co. v. Brown (at this term) 42 N. E. 359. The substance of the evidence on the former trial is set out in the opinion on the former decision. See 134 Ind. 636, 33 N. E. 1021. The evidence that appellee claims was added on the last trial is to the effect that, a day or two before the accident, at the point where it happened, there was noticed by the witness Henry Martin that there were not many ties under the T railing, and some of the ties were loose, and some of them were regular, and some of them were wide apart, and the spikes in the railing would hold them up from the roadbed. They would shake up and down when walked on by a man. The railing would hold them up from the roadbed, and in places there would be two or three close together, and then they would be wide apart. He made no other observation in regard...