Harris v. Cleveland
| Decision Date | 21 November 1899 |
| Citation | 55 N.E. 222,153 Ind. 475 |
| Court | Indiana Supreme Court |
| Parties | HARRIS v. CLEVELAND, C., C. & ST. L. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; Vinson Carter, Judge.
Action by Cornelius H. Harris against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Pliny W. Bartholomew and Fred L. Canine, for appellant. Elliott & Elliott and John T. Dye, for appellee.
Action by appellant to recover damages for personal injuries sustained by him on account of the alleged negligence of appellee in striking him with its train of cars while he was attempting to cross its railroad tracks in the city of Indianapolis. There was an answer in denial, and on the issues joined there was a trial before a jury. At the conclusion of the evidence introduced in the case the defendant filed a motion requesting the court to direct the jury to return a verdict in its favor, for the reason that there was no evidence which, under the law, would entitle plaintiff to recover. This motion the court sustained over the exceptions of the plaintiff, and directed the jury as follows: In compliance with this instruction, the jury returned a verdict in favor of the defendant, and, over the plaintiff's motion for a new trial, assigning the giving of this instruction as the only reason therefor, judgment was rendered for the defendant.
The record in this appeal neither contains nor professes to contain all of the evidence given upon the trial. The statement of the trial judge, in his certificate appended to the bill of exceptions, embracing the evidence, is as follows: “The above and foregoing was all of the evidence introduced, given in this cause, and submitted to the jury concerning and as to plaintiff's care, precaution, conduct, and actions immediately prior to and at the time plaintiff was injured, and as to the manner thereof.” Appellant seeks a reversal of the judgment solely upon the ground that the evidence introduced upon the trial to prove the absence of contributory negligence on his part was of such a character that it raised an issue to be determined by the jury, under proper instructions by the court, and that, therefore, under the circumstances, the court erred in directing a verdict in favor of appellee.At the very threshold of the consideration of this proposition we are confronted with the contention of appellee's learned counsel that the record presents no question for review upon the merits of the controversy, for the reason that the evidence is not all incorporated therein. With this contention we are constrained to concur. Appellant's learned counsel admits that the bill of exceptions professes to embrace only the evidence given on the trial concerning the care and precaution exercised by appellant at and immediately prior to the accident, and he asserts, to quote his own language, that “this is sufficient, as it is not necessary to burden the court with the other evidence, not bearing upon the question on which appellant seeks a reversal of this cause.” He also disclaims any attempt to appeal this cause under the provisions of section 642, Burns' Rev. St. 1894 (section 630, Rev. St. 1881; section 630, Horner's Rev. St. 1897), which apply to reserved questions of law; and it is evident that there was no effort to mold the record in the lower court so as to conform to the requirements of that section. Neither is the method adopted by appellant in preparing the record for this appeal authorized by the proviso to section 662, Burns' Rev. St. 1894 (section 650, Rev. St. 1881; section 650, Horner's Rev. St. 1897). Vide Elliott, App. Proc. § 193, and rule 30 of this court. Moreover, it has been held that the provisions of the proviso to that section apply more especially to instructions refused than to those given. Rozell...
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