Pennsylvania Co. v. Newmeyer

• Decision Date: 28 October 1891
• Citation: 28 N.E. 860,129 Ind. 401
• Parties: Pennsylvania Co. v. Newmeyer.
• Court: Indiana Supreme Court

129 Ind. 401

28 N.E. 860

Pennsylvania Co.

v.Newmeyer.

Supreme Court of Indiana.

Oct. 28, 1891.

Appeal from circuit court, Owen county; G. W. Grubbs, Judge.

Action by David C. Newmeyer against the Pennsylvania Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

S. O. Pickens, for appellant. David E. Beem and Willis Hickam, for appellee.

COFFEY, C. J.

In the month of May, 1888, the appellee, Newmeyer, shipped a carload of hogs from the town of Freedom, a station on the Indianapolis & Vincennes Railroad, to the city of Indianapolis. To accompany the hogs, he took passage in the caboose attached to the freight train in which the hogs were shipped. About two miles east of the station from which the hogs were shipped the caboose in which the appellee was riding and several other cars were thrown from the track by reason of a broken axle under one of the freight-cars, and thereby the appellee was injured. The complaint charges, among other things, that the railroad track was negligently permitted to get out of repair, and to become irregular, unlevel, and to contain rotten ties, and that the train in which the appellee was riding was negligently and carelessly run at a great and unusual rate of speed; that the cars in the train were old and defective; and that the employes in charge of the train were at the time of said injury intoxicated. A trial of the cause resulted in a verdict and judgment for the appellee, from which this appeal is prosecuted.

The appellant assigns as error that the circuit court erred in overruling the motion for a new trial. Many reasons were assigned in the motion for a new trial. but such reasons as have not been discussed in the brief of appellant must be regarded as waived. We will consider those discussed in the order in which they are presented.

On the trial of the cause the appellee propounded to one Stultz, a witness called by him, the following question: “You speak about Mr. Ryan being in that saloon before. How frequently had you seen him in that saloon before that time?” To this question the appellant objected, on the ground, as stated to the court, that the evidence sought to be elicited was immaterial, and would not in any way tend to prove any of the matters in issue; but the court overruled the objection, and the witness answered: “I did not stay there all the time myself. I have seen him there several times. When he went down, pretty nearly every time the train would stop there he would come in.” It had been shown that Ryan was the engineer in charge of the engine at the time the injury sued for occurred; and there was also evidence tending to prove that he had drunk intoxicating liquor at Freedom, the last station passed by the train before the injury, and about 30 minutes before the accident. We think the evidence was admissible as tending to prove the allegation that those in charge of the train were intoxicated at the time of the accident. The fact that Ryan, the engineer, was in the habit of drinking intoxicating liquor and of visiting this saloon, if such was the fact, was proper to be considered by the jury, in connection with the other evidence in the cause, as tending to sustain the charge of intoxication. Evidence that he was a teetotaller would have been competent on behalf of the appellant as rebutting the charge of intoxication, and we think proof that he was in the habit of drinking, in connection with proof that he had been drinking intoxicating liquor within 30 minutes of the time the accident occurred, was admissible to prove the converse.

One Hicks, a witness called by the appellee, testified, on his examination in chief, that he was engaged as a laborer with the section gang upon the railroad near the place where the accident occurred, and was standing near the railroad track shortly before its occurrence, and that his attention was directed to the speed of the train immediately before the accident. On cross-examination, the appellant asked him this question: “I will ask you to state to the jury what the speed of that train was as it passed you with reference to the speed ordinarily run there by the trains.” The court sustained an objection to this question, on the ground that it was not cross-examination. In addition to the objection that this was not strictly cross-examination, the question was subject to the further infirmity that it assumed a fact not proven or admitted, namely, that the witness had seen and had observed the speed of other trains at the same place. A question propounded to a witness should not assume the existence of a fact not proven or admitted. An eminent writer on the law of evidence says: “Although upon cross-examination counsel may put leading questions, those questions must not assume facts to have been proved which have not been proved, or that particular answers have been given contrary to the facts.” Starkie, Ev. (10th Ed.) § 197. Furthermore, the extent to which a cross-examination may be carried is largely under the discretion of the trial court, and a cause will not be reversed for the exercise of such discretion, unless it appears that there has been an abuse of the discretion to the injury of the party complaining. We do not think the court erred in sustaining an objection to this question.

It was in evidence that the appellee took several drinks of intoxicating liquor at Freedom shortly before he entered the train upon which he was injured. The physician who dressed his wounds near the depot at Spencer testified that the appellee did not appear to be entirely at himself mentally, and that he was in a somewhat dazed condition of mind, and that during the time his wound was being dressed he took one or more drinks of liquor. It was also in proof that one Yockey brought him one of the drinks. A dispute having arisen as to whether one of the drinks procured at the saloon near the depot at Spencer by Yockey was for the appellee, the appellant propounded to the saloon-keeper the following question: “State what was said by Mr. Yockey when he came after the brandy, with reference to whom it was for.” Upon objection by the appellee, the court refused to allow the witness to answer the question. Assuming that what Yockey said at the time he procured the liquor was admissible in evidence as explanatory of the act of procuring it, we are unable to perceive its materiality. If the appellee drank the liquor, the question as to who procured it for him was wholly immaterial. If the parties disputed about an immaterial matter, the court was under no obligation to consume time in hearing evidence as to who was correct in such immaterial matter. If the matter then in dispute was material, such materiality does not appear from the record before us, and we must presume in favor of the correctness of the ruling of the circuit court.

The appellee testified, on his own behalf, that after receiving the injury for which he sues he did not recover entire consciousness until he reached Brooklyn station, on his way to Indianapolis. To rebut this testimony, the appellant introduced one Lawson as a witness on its behalf; and after proving by him that he entered the passenger train at Spencer, and met the appellee on his way to Indianapolis a few hours after the accident, and between Spencer and the next station east had a conversation with him in relation to his injuries, thereupon the appellant propounded to the witness the following question: “State whether or not he appeared conscious of what he was talking about.” The court sustained an objection to this question. It is a rule, too familiar to call for citation, that a witness who is not an expert will not be permitted to give an opinion as to the mental condition of another without first stating the facts upon which the opinion is based. After stating the facts as a basis for an opinion,...