Hill v. Indianapolis And Vincennes Railroad Co.

• Decision Date: 12 May 1903
• Docket Number: 4,782
• Citation: 67 N.E. 276,31 Ind.App. 98
• Parties: HILL v. INDIANAPOLIS AND VINCENNES RAILROAD COMPANY ET AL
• Court: Indiana Appellate Court

67 N.E. 276

31 Ind.App. 98

HILL v. INDIANAPOLIS AND VINCENNES RAILROAD COMPANY ET AL

No. 4,782

Court of Appeals of Indiana

May 12, 1903

From Morgan Circuit Court; M. H. Parks, Judge.

Action by Harrison Hill against the Indianapolis & Vincennes Railroad Company and others. From a judgment for defendants plaintiff appeals.

Affirmed.

J. V Mitchell, D. E. Watson and Oscar Matthews, for appellant.

S. O Pickens and R. F. Davidson, for appellees.

COMSTOCK, J. ROBY, C. J., concurs.

OPINION

COMSTOCK, J.

Appellant brought his action against appellees to recover damages for personal injuries sustained by him by reason of alleged negligent and wilful acts of appellees. The complaint was in four paragraphs. The first and second each charge the injuries to have been negligently, the third and fourth to have been wilfully, done. The cause was put at issue by general denial. The jury returned a verdict in favor of appellant for $ 1,000 upon the first and second paragraphs of the complaint. With the general verdict, answers to interrogatories were returned. The trial court overruled appellant's motion for judgment on the verdict, and sustained appellees' motion for judgment on the answers to interrogatories notwithstanding the general verdict.

The only assignment of error is that "The court erred in overruling appellant's motion for judgment on the general verdict, and in rendering judgment for appellees and against appellant on the special findings non obstante."

It is insisted by appellees, before entering upon the discussion of the merits of the appeal, that the assignment of error presents no question for review. In one specification, two rulings of the court are assailed. The assignment that "the court erred in rendering judgment for the appellees" has been held insufficient. Seisler v. Smith, 150 Ind. 88, 46 N.E. 993; Hawks v. Mayor, 144 Ind. 343, 43 N.E. 304; McGinnis v. Boyd, 144 Ind. 393, 42 N.E. 678; Kimberlin v. Tow, 133 Ind. 696, 33 N.E. 770. Appellant excepted to the refusal of the court to render judgment in his favor on the general verdict. No exception was taken to the action of the court in sustaining appellees' motion for judgment.

Reserving an exception to the ruling of the trial court is a step in taking an appeal. If an exception is not taken, the ruling of the court can not be successfully attacked on appeal. See Ewbank's Manual, § 7, and cases cited. The rule is general that where there are several rulings each must be separately challenged, and an exception must be taken to each. Saunders v. Montgomery, 143 Ind. 185, 41 N.E. 453, and cases cited. The assignment is joint as to both rulings. It must be good as to both, or fail. No question being reserved upon the ruling of the court in rendering judgment in favor of appellees, the assignment is insufficient. Moore v. Morris, 142 Ind. 354, 41 N.E. 796; Florer v. State, ex rel., 133 Ind. 453, 32 N.E. 829.

We have, however, considered the answers to interrogatories. They show the following facts pertinent to the question of appellant's contributory negligence: The passenger station of the appellee Indianapolis &amp Vincennes Railroad Company, at Martinsville, Indiana, is located at the intersection of the railroad tracks and Pike street in said city. The main track runs in a straight line from the station southwest to Morgan street, which crosses said track at a point about 364 feet from Pike street. A side-track connects with the main track some distance southwest of Morgan street, and extends from that point northeastwardly on the southeast side of said main track past the station. On the 13th day of April, 1899, in the afternoon, a passenger-train operated by the appellee the Pennsylvania Company, with the appellee Revel as engineer, consisting of the engine, one baggage car, and two coaches, stopped at the station on its regular trip to discharge and receive passengers. The appellant, who kept a boarding-house, was there for the purpose of soliciting travelers to stop at his house. While the train was still standing at the station, appellant walked past it, and along the southeast side of the main track, towards Morgan street. With him, or just behind him, were two other men, going in the same direction. When the train started, appellant was walking in a safe place, between the main track and the side-track, where he continued to walk for some distance. He then stepped over near the main track, upon which the train was approaching, and walked along said track with his back to the train until he was struck by the engine and injured. The train was running at a speed of about four miles per hour, and had proceeded to a point about 314 feet from the depot or station when the collision occurred. The engineer was at his place, on the right side of the engine. The fireman, whose position was on the left side and next to the appellant, was not in his place. Neither of them saw the appellant before he was struck. The bell on the engine was not ringing. The space between the main track and the side-track, where appellant was walking, is forty feet wide at Pike street and twenty-five feet wide at the point where the...