Kessler v. Citizens' St. R. Co.

• Decision Date: 16 June 1898
• Citation: 20 Ind.App. 427,50 N.E. 891
• Parties: KESSLER v. CITIZENS' ST. R. CO.
• Court: Indiana Appellate Court

20 Ind.App. 427

50 N.E. 891

KESSLER

v.CITIZENS' ST. R. CO.

Appellate Court of Indiana.

June 16, 1898.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by George Kessler against the Citizens' Street-Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.Samuel A. Forkner, for appellant. Will H. Latta, for appellee.

COMSTOCK, J.

Appellant sued, before a justice of the peace, for damages on account of injuries to his buggy and team of horses, occasioned by the negligence of appellee's employés. The complaint alleges that appellee is a corporation, acting and doing business under the laws of the state of Indiana; that on the 24th day of May, 1895, appellant was driving a team of horses, with buggy attached thereto, lawfully, without any fault or negligence on his part, along and upon a certain public highway, and upon the track of appellant; that the defendant did then and there carelessly and unlawfully run its certain street car over, against, and upon said appellant's buggy and horses, and injured the same, in the sum of $100. The trial before the justice of the peace resulted in a judgment in favor of appellee. An appeal was taken to the Marion superior court. The cause was submitted to a jury, and upon request a special verdict was returned, upon which the court rendered judgment in favor of appellee.

The errors assigned on this appeal are (1) that the court erred in overruling plaintiff's motion for a new trial; (2) in overruling plaintiff's motion for judgment on the special verdict; (3) in sustaining defendant's motion for judgment on the special verdict, and for rendering judgment in favor of defendant, and against plaintiff, for costs. We will consider the assignments of error in the order in which they are specified.

The grounds for a new trial are: (1) The special verdict is contrary to law, and not sustained by sufficient evidence; (2) it is not sustained by the evidence, and is contrary to the law and the evidence; (3) the damages assessed are too small, the evidence showing damages to the amount of $50; (4) error of law occurring on the trial, in this: that the court failed to charge the jury as to the law of the case as provided by statute; (5) error of law occurring in this: that the court failed to inform the plaintiff or his attorneys that a special verdict had been demanded until after the evidence had been closed; (6) the verdict of the jury, as set out in said questions and answers, is contradictory, indefinite, and so uncertain that no judgment can be rendered thereon. The evidence is not in the record. The first, second, and third grounds for a new trial, therefore, cannot be considered. The fourth reason cannot be considered for the reason that the instructions of the court are not in the record. The statute in force at the time of...