Indianapolis & Eastern Railway Company v. Bennett
| Decision Date | 27 November 1906 |
| Docket Number | 5,875 |
| Citation | 79 N.E. 389,39 Ind.App. 141 |
| Court | Indiana Appellate Court |
| Parties | INDIANAPOLIS & EASTERN RAILWAY COMPANY v. BENNETT |
From Clinton Circuit Court; Joseph Claybaugh, Judge.
Action by Sanford Bennett against the Indianapolis & Eastern Railway Company. From a judgment on a verdict for plaintiff for $ 1,500, defendant appeals.
Affirmed.
H. C Sheridan, Jonas P. Walker and Elmer J. Binford, for appellant.
Doan & Orbison, A. J. Shelby and W. A. Staley, for appellee.
Appellee sues to recover damages for injuries sustained through appellant's alleged negligence. Appellee, as a passenger, had entered a car of the Indianapolis Traction & Terminal Company, at a regular stopping place, and while the car was stopped, and he was in the act of taking his seat. A car of appellant's, coming on the same track from the rear, struck the traction car, throwing appellee against the side of the car, causing the injuries complained of. The jury returned a verdict in appellee's favor, and from a judgment thereon this appeal is taken. Denying appellant a new trial is assigned as error.
Appellant insists that the eleventh instruction is erroneous because it singles out and gives prominence to certain facts favorable to appellee, to the exclusion of other facts favorable to appellant, and that it invades the province of the jury. The instruction is quite long and enumerates certain facts and circumstances which the jury may consider. But it does not undertake to tell the jury that if such facts are shown to exist by a preponderance of the evidence, they should return a certain verdict. It closes with the clause, "and from all these facts and together with all the evidence and circumstances given in evidence in this cause you shall determine whether the defendant was or was not negligent as charged in plaintiff's complaint."
Appellant requested seventeen instructions, all of which were given, except the first and second, which were peremptory instructions to find for appellant, and the sixth relating to the preponderance of evidence. In the instructions thus given at appellant's request, the case was submitted to the jury as favorably to appellant as could be asked. When these instructions are considered in connection with the large number of other instructions given, and to which no objection is made, it cannot be said that the jury were not fully instructed upon the law of the case. The facts which appellant claims were omitted from the eleventh instruction are found in other instructions that were given. "If instructions given to the jury," said the court in Blanchard v. Jones (1885), 101 Ind. 542, "taken as a whole, express the law applicable to the case, without material contradiction, the judgment will not be reversed because some one instruction, if considered by itself, might be capable of an application which would ignore a material question involved in the issues." See Cromer v. State (1899), 21 Ind.App. 502, 52 N.E. 239; Bowman v. Bowman (1899), 153 Ind. 498, 55 N.E. 422.
It is also argued that the court erred in refusing to give the following instruction: Appellant's brief says: "This instruction correctly states the law, as it tells the jury that, all other things being equal, the greater number of witnesses would carry the greater weight." But we do not understand that the instruction says that. Renard v. Grande (1902), 29 Ind.App. 579, 64 N.E. 644. Conceding, without deciding, that the element, "all other things being equal," would make the instruction good, it is clear that without that element it is erroneous. The jury must not only pass upon the weight of the evidence but also upon the credibility of the witnesses. The instruction takes from the consideration of the jury all corroborating circumstances which if considered by the jury might convince them of the truthfulness of the testimony of one witness and of the falsity of another, although the two witnesses might be of equal candor, fairness and intelligence. The jury must determine not only the credibility of each witness, but also the weight that shall be given to the testimony of each witness. The instruction as requested, tended to give the jury to understand that the preponderance of evidence is to be determined by the number of witnesses testifying on each side. See Howlett v. Dilts (1892), 4 Ind.App. 23, 30 N.E. 313; Fritzinger v. State, ex rel. (1903), 31 Ind.App. 350, 67 N.E. 1006; Bierbach v. Goodyear Rubber Co. (1882), 54 Wis. 208, 11 N.W. 514, 41 Am. Rep. 19; Amis v. Cameron (1875), 55 Ga. 449.
Objection is made to the following question propounded by appellee to a physician: "And from what you know of the case what, in...
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