Ohio & M. Ry. Co. v. Stein

• Decision Date: 17 December 1892
• Parties: OHIO & M. RY. CO. v. STEIN.
• Court: Indiana Supreme Court

133 Ind. 243

32 N.E. 831

OHIO & M. RY. CO.

v.STEIN.

Supreme Court of Indiana.

Dec. 17, 1892.

On rehearing. Petition overruled. For report of decision on appeal, see 31 N. E. Rep 180.

Olds, J.

Counsel for appellee have filed a petition for rehearing in this cause, and by a learned and able argument insist that a rehearing should be granted. The cause had due consideration and the questions involved were fully considered in the original opinion, and we deem it necessary to consider but one question only presented by the petition for rehearing. It is contended by counsel for appellee that the question decided adversely to the appellee, and for which the judgment was reversed, was not properly presented to this court for decision; that the competency of that portion of the testimony of the plaintiff as a witness, stating that the engineer, Brumley, told him that, “if that man last night had fixed the cylinder cock as I told him, you would not have been hurt,” was only raised by a motion to strike out; that such statement was made in answer to a competent question, which elicited other competent testimony in connection with such incompetent testimony. After the answer was given by the witness to the question, counsel for appellant made a motion to strike out the incompetent part of the answer, stating his reasons, and the court overruled the motion, and the appellant excepted. The reason for new trial relating to this evidence alleges “that the court erred in permitting the plaintiff, while testifying as a witness in his own behalf, to testify to the following, to wit: That after the accident resulting in the injuries complained of, and after plaintiff had received said injuries, he (plaintiff) asked the engineer, Brumley, how this happened, [referring to the accident,] and that said Brumley told the plaintiff, in answer to said inquiry, that he, Brumley, could not throw the reverse lever forward, and that ‘if that fellow had fixed the cylinder cock as I told him to, this thing would not have happened.”’ And there was no reason assigned for new trial based on the error of the court in overruling the motion to strike out. It appears by the record that a proper motion was made to strike out this latter statement of the witness, which was in the original opinion held to be erroneous, and an exception to the ruling was reserved. It would seem that as a matter of fact the trial court's attention was called directly to the question which was passed upon, and decided by this court. A motion for new trial was made, in which one of the reasons assigned was error in admitting this statement, together with the statement that the engineer said he could not throw the reverse lever forward. On appeal in this court the question as to whether or not these particular statements were both or either of them competent was discussed by counsel, and the question as to whether the latter statement of the witness was competent or not was treated as being properly presented by the record. It would seem quite evident from the fact that a separate motion to strike out the particular part of the statement of the witness which was held by this court to be incompetent, and from the motion for new trial and the discussion in this court by briefs and orally, that the question was treated as in the record, and the trial court passed upon the question reviewed by this court in passing upon the motion for new trial; and, if the question is not properly before this court, it is on account of a technical defect in the form of the motion...