Lake Erie and Western Railroad Company v. Johnson
| Decision Date | 24 January 1922 |
| Docket Number | 23,587 |
| Parties | Lake Erie and Western Railroad Company v. Johnson |
| Court | Indiana Supreme Court |
From Laporte Superior Court; Harry L. Crumpacker, Judge.
Action by Clyde F. Johnson against the Lake Erie and Western Railroad Company. From a judgment for plaintiff, the defendant appeals.
Reversed.
John B Cockrum, H. B. Tuthill, A. J. Hickey and Norman F. Wolfe, for appellant.
Grant Crumpacker, Owen L. Crumpacker, Lemuel Darrow and Earl Rowley, for appellee.
The appellee recovered a judgment against the appellant for personal injuries sustained when a train on appellant's railroad and an automobile in which appellee was riding collided at a highway crossing just outside the city of Laporte. The first paragraph of the complaint was drawn on the theory that the collision occurred inside the city limits, but the parties agreed in open court that it occurred outside the city, and the verdict and judgment are based upon the second paragraph of the complaint, which alleged that fact.
The only error assigned is overruling the motion for a new trial. The motion specified as errors that the court permitted appellee, when testifying, to answer certain questions to the effect that there was no automatic bell or signal at the crossing where he was injured, but that such signals operated by electricity had been in use on railroads at highway crossings in the country, outside of cities, for fifteen years, and permitted appellee's wife to testify that her services in nursing him were worth $ 25 per week, and gave each of four instructions, and refused one that was requested; that the damages were excessive; and that the verdict was not sustained by sufficient evidence. The motion for a new trial was overruled and appellant excepted, and has duly presented that ruling for review on appeal.
The appellee challenges the motion for a new trial as failing to present any questions for decision upon the admission of evidence and giving or refusal of instructions, on the ground that the several specifications stating that the court erred in permitting a witness to testify as stated, in answer to certain questions, or that it erred in giving each of certain instructions or in refusing one that was requested, contain no statements that such rulings, respectively, were each excepted to by the appellant. It is true that the statute authorizes a new trial to be granted for an "error of law occurring at the trial" only in case it has been "excepted to by the party making the application." § 585, cl. 8, Burns 1914, § 559 R. S. 1881.
But whether or not a proper objection was made and an exception taken is to be determined from what is shown by the record and not from the recitals in the motion for a new trial. Campbell v. State (1897), 148 Ind. 527, 529, 47 N.E. 221; Cleveland v. Applegate (1893), 8 Ind.App. 499, 35 N.E. 1108; Louisville, etc., R. Co. v. Miller (1895), 141 Ind. 533, 37 N.E. 343; Ewbank's Manual (2d ed.) § 50. The motion is only required to point out, with reasonable certainty, the ruling complained of, and this motion was sufficient. Cleveland, etc., R. Co. v. Powers (1909), 173 Ind. 105, 88 N.E. 1073, 89 N.E. 485.
Instruction No. 3, given by the court, stated that
The court also gave another instruction, No. 12, which directly submitted to the jury for its decision the question whether or not the appellant was guilty of negligence in failing to maintain a watchman or gates at the crossing, in which there was no reference whatever to the speed at which or the manner in which the train that caused the injury or any other train was operated over the crossing. That it was error to give these instructions, and was also error to admit the evidence of plaintiff tending to show that automatic signals and bells were used at other highway crossings, has been decided by this court in a recent case on...
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