Ohio And Mississippi Railway Company v. Voight

• Decision Date: 26 February 1890
• Docket Number: 14,692
• Citation: 23 N.E. 774,122 Ind. 288
• Parties: The Ohio and Mississippi Railway Company v. Voight, Administrator
• Court: Indiana Supreme Court

23 N.E. 774

122 Ind. 288

The Ohio and Mississippi Railway Company v. Voight, Administrator

No. 14,692

Supreme Court of Indiana

February 26, 1890

From the Knox Circuit Court.

Judgment affirmed.

W. H De Wolf, E. H. De Wolf, H. D. McMullen, W. R. Johnston, W. M Ramsey, L. Maxwell, Jr., R. Ramsey and S. N. Chambers, for appellant.

G. G Reily, for appellee.

OPINION

Coffey, J.

Robert E. Baker, deceased, was a postal clerk in the employ of the United States, and had charge of a car on a train carrying the mail between the city of Cincinnati, in the State of Ohio, and the city of St. Louis, in the State of Missouri. On the 29th day of July, 1887, while deceased was in his car, attending to his duties as such postal clerk, and while the train was running at a high rate of speed, one of the axles of the tender broke, throwing the train from the railroad track, by reason of which the postal car in which the deceased was travelling was wholly demolished, and the deceased lost his life. This action was brought by the administrator of his estate for the purpose of recovering damages on account of his death, for the benefit of his next of kin, under the provisions of our statute upon the subject.

It is charged in the complaint that the death occurred wholly on account of the negligence of the appellant, and without any fault or negligence on the part of the deceased; that on said day while said postal car was being hauled by the appellant's officers and servants, in a regular passenger train on appellant's railway, near the city of Aurora, in Dearborn county, Indiana, and while the deceased was in said car in charge of the mails, said car was thrown off said railway track to the ground beneath with great force and violence and broken to pieces, and so crushed and destroyed that the decedent was thereby thrown out of the same and against and under another car in said railroad train and thereby killed; that said postal car, at the time it was so thrown from said railroad track, was attached to the locomotive-tender, and was being hauled by the same; that said locomotive-tender broke the rear axle thereof, and said axle by reason thereof fell upon the track and was dragged along and upon the cross-ties of said railroad, tearing the same loose from the track, thereby displacing the same, so that said postal car was thereby thrown from the track; that said axle was defective, and unfit for the purpose for which it was used, in this: that the iron of which it was composed was unsound, and had been imperfectly heated and welded together; that the same was broken one-third of the distance from its surface towards the center thereof, at the point where broken as aforesaid, and had been so broken for several months prior to said accident, and that said defects, by proper inspection, might have been known to the appellant; that said axle had been used in said tender by appellant until the same had become brittle in consequence thereof, which appellant knew, or ought to have known; that said postal car was old and weak, and unfit for use as such; that the timbers were not sufficiently strong nor securely braced and nailed, or riveted together, so that on account of said defects it broke to pieces and threw said deceased out, whereas if it had been sufficiently strong it would not have broken, but would have held together, and would have protected the deceased from the injuries which resulted in his death.

A trial of the cause resulted in a verdict and judgment for the appellee, from which judgment appellant appeals to this court.

With the general verdict the jury returned answers to interrogatories, from which it appears that the wreck in which the decedent lost his life occurred by reason of the breaking of one of the axles under the tender attached to the engine which was hauling the train; that the postal-car, in which the deceased was travelling, had been properly constructed, but that by reason of age and long use it had become frail and weak and was unfit for use, and by reason thereof was broken up in the wreck, thereby causing the death of the decedent. The errors assigned are:

First. The court erred in overruling the appellant's motion to strike out part of the deposition of Vaden C. Yelton.

Second. The court erred in overruling the appellant's motion to require the jury to make its answer to interrogatory number six more specific, and state the name of appellant's agent who was guilty of the negligent act which caused the death of Robert E. Baker.

Third. The court erred in overruling the appellant's motion for judgment in its favor on the answers of the jury to interrogatories.

Fourth. The court erred in overruling the appellant's motion for a new trial.

The first, second and third assignments of errors are not discussed by counsel, and must, therefore, under the well-known rule of this court, be regarded as waived, and need not be further noticed.

Under the fourth assignment of error, it is insisted that the evidence in the cause does not support the verdict of the jury. This objection is met by appellee with the contention that the evidence is not in the record, and that we must, therefore, presume that the evidence was sufficient to support the verdict.

There appears in the record of this cause a certified copy of a bill of exceptions, signed by the special judge before whom it was tried, purporting to set out the evidence given in the cause, in which appear certain depositions read in behalf of the appellee. Following these depositions appears in said bill the following language:

"The plaintiff introduced and examined, orally, the following named witnesses, to wit: Peter E. Grimes, Frederick A. Voight, Mrs. Phoebe Baker, whose testimony was taken in short-hand by William H. Pope, short-hand reporter appointed by the court, and duly sworn, whose long-hand report of the oral testimony is filed as a part of the record in this cause, and is made a part of this bill of exceptions."

Following this language is a motion to strike out parts of certain depositions, after which appears the following language:

"And the defendant, to sustain the issue on its part, introduced and orally examined the following named witnesses, to wit: Gabriel M. Donald, Lucius C. Johnson," (and seventeen others). "And the rulings of the court in respect to the admission and rejection of evidence, and the objections thereto, were made and taken as noted, and a verbatim report of such evidence, and the objections and exceptions thereon and thereto were made by said William H. Pope, official short-hand reporter, of which evidence, rulings, objections and exceptions so made and taken, the following is the original long-hand manuscript as the same was taken and filed, and is hereby made a part of this bill of exceptions."

Nothing appears in the body of this bill purporting to be the long-hand manuscript of the short-hand reporter's notes of the evidence in the cause. If the long-hand manuscript is a part of the record in the cause, it is not because it is made so by being incorporated, bodily, into a bill of exceptions, but because it is made so by the reference made to it in the bill of exceptions as above set forth. A long-hand manuscript is not a written instrument within the meaning...