Louisville v. Thompson

• Citation: 9 N.E. 357,107 Ind. 442
• Court: Indiana Supreme Court
• Decision Date: 22 November 1886
• Parties: Louisville, N. A. & C. Ry. Co. v. Thompson, Adm'r, etc.

107 Ind. 442

9 N.E. 357

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

v.Thompson, Adm'r, etc.

Supreme Court of Indiana.

November 22, 1886.

Appeal from circuit court, Washington county.

On petition for rehearing. See 8 N. E. Rep. 18.

Alspaugh & Lawler, for appellant. Zaring, Voyles & Morris, for appellee.

Elliott, J.

An earnest and able petition for rehearing has been filed, and it is thought proper to again discuss some of the questions argued. We said in our former opinion that, even if it were conceded that the widow of Andrew Eichler was not a competent witness, no material error was committed in permitting her to testify, and we still adhere to that view; but we are prepared to go further, and hold that she was a competent witness, for the statute does not apply to cases of tort resulting in the death of the husband. Neither section 498 nor section 499 of the Code applies to a case like this, for the widow is not a party to the record, nor is her interest adverse to the estate, and the case is not one between heirs. The case is not “founded on a contract with or demand against the ancestor,” or “to obtain title to or possession of property, real or personal,” but is an action to recover damages for a tort causing the husband's death.

The circumstances proved by the appellee show that Andrew Eichler was on the appellant's train, and was killed by the falling of the train into the river. It is not necessary in any case, civil or criminal, that the material facts should be established by direct evidence. Greenleaf thus states the rule which prevails in civil cases: “In civil cases it is sufficient if the evidence, on the whole, agrees with and supports the hypothesis which it is adduced to prove.” It is also said by this author that it is the duty of the jury “to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth.” 1 Greenl. Ev. § 13. This rule has been often approved by this court. Indianapolis, etc., Co. v. Collingwood, 71 Ind. 476;Indianapolis, etc., Co. v. Thomas, 84 Ind. 194;Terre Haute, etc., Co. v. Buck, 96 Ind. 346, see page 363; Hedrick v. D. M. Osborne & Co., 99 Ind. 143, see page 147; Evansville, etc., Co. v. McKee, Id. 519, see page 525; Union Mutual, etc., Co. v. Buchanan, 100 Ind. 63, see page 72; Evansville, etc., Co. v. Mosier, 101 Ind. 597; S. C. 1 N. E. Rep. 197; Riehl v. Evansville Foundry Ass'n, 104 Ind. 70; S. C. 3 N. E. Rep. 633.

The reasonable probability, and, indeed the only fair inference, from the facts and circumstances established, is that Eichler was on the train which went down into Blue river. He was in Chicago, and was expected home in Louisville about the time of his death. His route was over the appellant's road. His body was found about one and one-half or two miles down stream. His name was on the tab of his shirt; and in his pocket, among other things, was a conductor's check, issued by the conductor of the train. Bodies were seen washing down the river immediately after the train went down. The river was very high, and the current swift. Seven persons besides Eichler lost their lives by the disaster. When Eichler's body was taken from the water it was found to be badly mangled. The “head was,” as one of the witnesses said, “caved in, and his bowels torn out.” Another witness says: “The body was badly torn up; right leg broken. His hip was broken, and his belly torn open.” Timbers floated down stream from the bridge, displaced by the cars crashing through them. These circumstances unmistakably show that Eichler was violently killed and horribly mangled by some means, and the most natural inference in the world is that he was killed by the train's plunging through an unsafe bridge, as were seven others who were on the train; and this supplies ground for inferring that he was on the train. But in addition to this are the other facts that he was in Chicago, and expected home, and had a conductor's check in his pocket. There is not one particle of evidence tending to show that he was, or could have been, injured in any other way than by the train in which he was seated falling through the defective bridge; but, it is the most natural and reasonable of inferences to conclude that he was mangled and killed by the fall of the train, which running, as it was, at a high rate of speed upon the bridge, crushed it beneath its force and weight.

That the...