Indianapolis & M. Rapid Transit v. Edwards

• Decision Date: 23 May 1905
• Docket Number: No. 5,235.,5,235.
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS & M. RAPID TRANSIT v. EDWARDS.

36 Ind.App. 202

74 N.E. 533

INDIANAPOLIS & M. RAPID TRANSIT

v.EDWARDS.

No. 5,235.¹

Appellate Court of Indiana, Division No. 2.

May 23, 1905.

Appeal from Circuit Court, Morgan County; John C. Robinson, Judge pro tem.

Action by Mary E. Edwards against the Indianapolis & Martinsville Rapid Transit Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Chas. O. Roemler, Chas. G. Renner, and John C. McNutt, for appellant. Doan & Orbison and Oscar Matthews, for appellee.

COMSTOCK, J.

Appellee recovered judgment in the court below against appellant in the sum of $2,500 for personal injuries alleged to have been received by her on the 25th day of July, 1903, by reason of having been negligently thrown from the platform of one of appellant's cars at Jefferson street, in the town of Mooresville. Appellant assigns as error the action of the court in overruling its motion for a new trial. The grounds for a new trial argued are newly discovered evidence, and the giving of instructions 3, 6, and 16 by the court of its own motion.

The act of negligence charged in the complaint is “that defendant negligently started said car when she was in the act of stepping from the rear platform thereof onto the steps of said car, and, by reason of said starting, this defendant negligently threw this plaintiff with great force and violence against the corner of said car and onto the ground,” etc.

The newly discovered evidence is that of one Clyde Olleman, and is set out in his affidavit as follows: “Clyde Olleman, being duly sworn, upon his oath says: That he is sixteen years old. That he was a passenger on the car of Indianapolis & Martinsville Rapid Transit Company which arrived at Mooresville from Bethany Park at 10 or 11 o'clock p. m. of July 25, 1903. That he rode on the rear platform of said car all the way, and that he heard the conductor in charge of said car, after leaving the power house, say that he would not stop again until Indiana avenue was reached. That George Keller asked the conductor to stop the car at Jefferson street, and the car was stopped there. That Mr. and Mrs. Keller got off the car, and very soon thereafter the car started. When the car started, he saw Mary E. Edwards coming out of the rear door of the car, and she continued to go out of the car onto platform, and on down the steps of the car, and when he last saw her she was on the bottom step of the car; and her boy was at her side, and I think she had hold of him. The car started slowly, and moved slowly, and had gone ten or twelve feet from the time it started until I last saw Mrs. Edwards. When I saw her on the bottom step of the car I turned my eyes into the car, and did not see her fall,” etc. Three witnesses (Ernest Krug, Carrie B. Keller, and Delphia Carpenter) testified upon the trial to the movements of appellee, as far as they were able, from the time she got up from her seat until she left the car. But one of these witnesses (Carrie B. Keller) testified to having seen appellee step or fall off of the car. She fixed the distance from the point where she got off the car and where the plaintiff fell at from four to five feet. In his affidavit, Olleman says he saw appellee come out of the rear door of the car onto the platform, and on down the steps of the car, and when she was on the bottom step her boy was at her side. Affiant thought she had hold of him. He says that the car started slowly, and when he last saw her she was on the bottom step of the car. He did not see her fall. The only facts set out in the affidavit not testified to by some witness for appellant was the fact that appellee's boy was with her. In effect, counsel for appellant concede this, but argue that “it would be much more dangerous to undertake to alight from a street car, while the same was in motion, having hold of a child, than if the person had no such burden; and this is especially so in the case of a woman.” So far as the presence of the child could affect the result, it could not have been material, for the court instructed the jury that it was contributory negligence, sufficient to bar recovery, if the appellee attempted to get off the car when it was moving. Apart from this consideration, the new evidence only sought to show the movement of appellee immediately preceding her leaving the car. It was evidence of the same kind—to the same point—as that introduced on the trial, and was therefore cumulative. 1 Greenleaf's Evidence, § 2; Hines v. Driver, 100 Ind. 315;Offutt v. Gowdy, 18 Ind. App. 602, 48 N. E. 654;Eddingfield v. State ex rel. Cheney, 12 Ind. App. 312, 39 N. E. 1057. A new trial will not be granted on account of newly discovered evidence which is merely cumulative. Remy v. Lilly, 22 Ind. App. 111, 53 N. E. 387, and cases cited. The witnesses introduced by appellant were certainly...