Miller v. Evansville And Indianapolis Railroad Co

• Decision Date: 31 October 1895
• Docket Number: 17,388
• Parties: Miller, Admx., v. Evansville and Indianapolis Railroad Co
• Court: Indiana Supreme Court

41 N.E. 801

143 Ind. 570

Miller, Admx., v. Evansville and Indianapolis Railroad Co

No. 17,388

Supreme Court of Indiana

October 31, 1895

Reported at: 143 Ind. 570 at 573.

From the Daviess Circuit Court.

Judgment affirmed.

T. H Dillon, for appellant.

J. E Iglehart, E. Taylor, Gardiner & Gardiner and F. B. Posey, for appellee.

OPINION

Jordan, J.

Appellant, as the administratrix of Christopher C. Miller, instituted this action against the appellee for ten thousand dollars damages, arising out of the alleged wrongful killing of her said decedent. The complaint is in two paragraphs, and alleges substantially that the railroad company, by its agent, carelessly, recklessly and negligently ran its locomotive engine backwards through the town of Petersburg, Indiana, at a speed of forty miles per hour in the night time, without headlight or lantern, and without giving any signals of its approach, and thereby negligently, recklessly and carelessly ran said locomotive against and over said Christopher C. Miller, whereby he was killed, etc.

The cause was put at issue by appellee filing an answer in denial, and on motion the venue was changed from the Pike Circuit Court to the Daviess Circuit Court. A trial in the latter before a jury resulted in a verdict in favor of appellee. Over appellant's motion for a new trial a judgment was rendered in favor of appellee, and sixty days were granted to appellant to prepare and file her bill of exceptions.

The only error assigned is that the court erred in overruling the motion for a new trial. Appellant argues and insists that the judgment is not sustained by the evidence, and is also contrary to law. Complaint is made in regard to certain instructions given to the jury; and also in relation to the court's ruling in refusing to admit in evidence a copy of an ordinance of the town of Petersburg, regulating therein the running of railroad trains. These are the only questions which appellant seeks, by this appeal, to present for our decision. Upon an examination we find that the record presents none of the questions discussed by counsel for appellant. Incorporated into the transcript are what purport to be two bills of exceptions, one embracing the evidence and the other the instructions. Neither of these bills is properly before this court, for the reason that there is no entry independent of the bills themselves to indicate that either was filed. Section 629, R. S. 1881 (section 641, R. S. 1894), renders it necessary to file the bill with the clerk of the trial court after it...