Louisville, N.A. v. Worley

• Decision Date: 25 May 1886
• Citation: 107 Ind. 320,7 N.E. 215
• Court: Indiana Supreme Court
• Parties: Louisville, N. A. & C. Ry. Co. v. Worley.

107 Ind. 320

7 N.E. 215

Louisville, N. A. & C. Ry. Co.

v.Worley.¹

Supreme Court of Indiana.

May 25, 1886.

Appeal from Monroe circuit court.

Geo. W. Friedley and Eli K. Miller, for appellant.

East & East, for appellee.

Elliott, J.

The appellee's complaint is in one paragraph, and, as originally drawn, sought a recovery for 13 mules killed by one of the appellant's trains. On the trial it appeared that the mules were killed by different trains, and at different times, whereupon the appellee dismissed as to the mules killed by the north-bound train, and of the ruling permitting this to be done appellant complains. There can be no doubt, under our statute and our decisions, that a plaintiff may dismiss his action at any time before the jury retire. This general doctrine we do not understand the appellant's counsel to combat; but, as we understand them, their contention is that the court ought to have required the appellee to particularly designate the mules for which a recovery was sought. We do not think the question now argued was so presented to the trial court as to make it available on appeal. A general objection only was made to the plaintiff's motion to dismiss the action as to all the mules killed by the north-bound train. The evidence showed very clearly and definitely that mules were killed by the south-bound train, for which a recovery was asked, and the trial court and the parties were therefore fully advised as to the particular animals for which a recovery was sought. Had the appellant desired that the complaint should be made more specific, the appropriate remedy was a motion to that effect, and not a general objection to the appellee's offer to dismiss. The principle runs through all our decisions that objections, in order to be available, must be specifically made in the trial court, and that mere general objections will not be available on appeal.

The appellant submitted to the court interrogatories, and asked that they should be submitted to the jury; but the court, instead of submitting those asked by the appellant, prepared and submitted interrogatories of its own. The prayer for the submission of the interrogatories to the jury was not a proper one, for the court was not asked to instruct the jury to answer the interrogatories in the event that they returned a general verdict. Taylor v. Burk, 91 Ind. 252. We have, however, examined the interrogatories, and find that those propounded by the court substantially covered those asked by the appellant, so far as they were competent and material. Our decisions are that it is proper for the trial court to revise interrogatories submitted by the parties, and to prepare and propound for itself proper interrogatories to the jury. Killian v. Eigenmann, 57 Ind. 480.

The court submitted this interrogatory: “Could the defendant have lawfully fenced its track at the point where said mules entered upon the track?” It is contended that this interrogatory is not a proper one, as it calls upon the jury to decide a question of law, and not of fact, and thus casts upon them a duty that the court should perform. We can perceive no answer to this contention, and appellee's counsel have not suggested any. Our statute makes it the duty of the court to submit to the jury only questions of fact, and the question here submitted is, it seems to us, one of law. The purpose of addressing interrogatories to juries is to elicit decisions upon matters of fact, and...