Gates v. Baltimore & Ohio Southwestern Railway Company

• Decision Date: 13 March 1900
• Docket Number: 18,414
• Citation: 56 N.E. 722,154 Ind. 338
• Parties: Gates v. Baltimore and Ohio Southwestern Railway Company
• Court: Indiana Supreme Court

56 N.E. 722

154 Ind. 338

Gates v. Baltimore and Ohio Southwestern Railway Company

No. 18,414

Supreme Court of Indiana

March 13, 1900

From the Jackson Circuit Court.

Affirmed.

A. N Munden, B. H. Burrell, F. Branaman, B. K. Elliott, W. F Elliott and F. L. Littleton, for appellant.

E. W Strong, O. H. Montgomery, H. D. McMullen and H. R. McMullen, for appellee.

OPINION

Jordan, J.

Appellant was in the employ of the Baltimore & Ohio Southwestern Railway Company as a conductor upon one of its freight trains. By reason of an injury received, which he attributes to the negligence of said company, he instituted this action to recover damages.

It is alleged substantially in the complaint that the defendant negligently permitted and suffered a certain metal rod, placed near the coupling of a freight car, which was handled by appellant in the line of his duty, to project out to such a distance that, when the car was coupled to another car, the rod came into contact with timbers of the adjacent car, and thereby rendered the coupling or uncoupling of the cars dangerous. It is, in effect, alleged that, under these circumstances, appellant, while attempting to uncouple such car from another car, without notice that it was dangerous or unsafe to do so, was injured by having his right arm caught between the rod and the other car, and that the injury was of such character as to render amputation of the limb necessary, etc. Absence of contributory negligence upon the part of the appellant is also alleged.

Upon the trial the jury returned a special verdict framed by means of interrogatories, under the act of 1895, and awarded appellant damages in the sum of $ 10,000. Appellant and appellee both moved for judgment on this verdict. The motion of the former was overruled and that of the latter was sustained.

Appellant, before the rendition of the judgment, also moved for a new trial, assigning as reasons therefor, among others: (1) "That the judgment of the court is contrary to law, and is not sustained by the evidence; (2) That the decision of the court is not sustained by sufficient evidence, and is contrary to law." This motion was overruled, and judgment was rendered upon the special verdict that appellant take nothing by his action, and that appellee recover its cost. From this judgment appellant appeals, and assigns as errors: (1) That the court erred in sustaining appellee's motion for judgment on the special verdict; (2) in overruling appellant's motion for judgment on the special verdict; (3) in overruling the motion for a new trial. On October 8, 1897, a transcript of the record was filed in the office of the clerk of this court, together with appellant's original brief. On March 10, 1898, appellee filed its brief. On May 13th following, appellant filed what is denominated a reply brief. Appellant prefaces his original brief by giving a mere summary of the facts in respect to the injury sustained, and citing us to various pages and lines of the transcript, which are said to disclose the proceedings had in the lower court. Following this, there is presented what is denominated a general statement of the special verdict. Next follows what appellant is satisfied to submit as his sole argument to convince us that the first and second assignments of errors ought to be sustained. These alleged errors are discussed as follows: "The court erred in overruling appellant's motion for a judgment in his favor upon the special verdict. The court erred in sustaining appellee's motion for a judgment in its favor. This verdict was prepared and rendered under the special verdict law of 1895, which was repealed by the act of 1897. In order to fully comprehend the ruling of the court upon each of the above assignments of error, it will require an examination of the special verdict in this cause." These alleged errors are then dismissed, and are not again referred to in the brief until near its close, where it is merely asserted that, under the evidence and the law, the special verdict is such as to warrant a judgment for $ 10,000 in appellant's favor, and that the court erred in overruling his motion for judgment thereon. This may be said to constitute the entire argument in the original brief in respect to the questions sought to be raised under the first and second assignments of error.

It is a well settled rule of appellate procedure that a party, in order to have alleged errors of the trial court considered upon appeal, must do more than merely call attention to them, and assert that the court erred. He is required to go further, and, at least, make an attempt to argue or show wherein he claims that the rulings of the court are erroneous; otherwise, the errors alleged, in respect thereto, will be considered as waived. Chicago, etc., R. Co. v. Hunter, 128 Ind. 213, 27 N.E. 477; Ewbank's Manual, §§ 180, 188; Elliott's App. Proc. §§ 440, 445.

It is evident that appellant, in his original brief, has failed to comply with the rule so firmly settled by the authorities, and has left this court unaided to discover, if possible, wherein the ruling of the court which he calls in question, under the first or second assignment of error is wrong.

It is true that six months and over after the submission of this cause appellant, by his...