Southern Ry. Co. of Indiana v. Ingle

• Decision Date: 04 April 1945
• Docket Number: No. 28084.,28084.
• Parties: SOUTHERN RY. CO. OF INDIANA et al. v. INGLE.
• Court: Indiana Supreme Court

223 Ind. 271

60 N.E.2d 135

SOUTHERN RY. CO. OF INDIANA et al.

v.INGLE.

No. 28084.

Supreme Court of Indiana.

April 4, 1945.

Action for wrongful death by Estella Mae Ingle, administratrix of the estate of Gaylord W. Ingle, deceased, against the Southern Railway Company of Indiana and another. Judgment for plaintiff, and defendants appeal. Transferred from the Appellate Court under Burns' Ann.St. § 4-215.

Reversed and remanded for a new trial.

Superseding opinion in 57 N.E.2d 948.Appeal from Warrick Circuit Court; J. Harold Hendrickson, judge.

Ora A. Davis, of Boonville, William T. Fitzgerald and Phelps Darby, both of Evansville, and S. R. Prince and H. G. Hedrick, both of Washington, D. C., for appellants.

Edgar Durre and Vincent A. Jahn, both of Evansville, and Leslie H. Hendrickson, of Boonville, for appellee.

STARR, Judge.

This was a suit brought by the appellee against the appellants to recover damages for the death of Gaylord W. Ingle, resulting from a fatal accident which occurred when a truck driven by the decedent collided with a locomotive hauling a freight train across a grade crossing where the appellants' tracks intersect state highway No. 66 just west of the town of Troy, Indiana. The cause was tried by a jury, which trial resulted in a verdict for the appellee against the appellants. Judgment was duly rendered on the verdict against the appellants and in favor of the appellee.

In view of the conclusion we have reached it is only necessary to consider the sixth specification of appellants' assignments of error, which specification is that the court erred in overruling appellants' motion for new trial.

In their motion for new trial, the appellants, as their tenth ground therefor, contend that the court erred in overruling the defendants' objection to the introduction and reading in evidence of the deposition of one Leonard Richardson, a witness on behalf of the plaintiff, which deposition, over the defendants' objection, was read in evidence by plaintiff as part of her case in chief.

This deposition discloses that it was taken at the courthouse at Evansville, Indiana, pursuant to notice served upon the defendants by the plaintiff, and that it was not taken by agreement of the parties or by order of the court trying the case. The deposition on its face discloses that the said Leonard Richardson at the time it was taken resided at 206 Court Street, in the city of Evansville. This court takes judicial notice that Evansville is in Vanderburgh County, which adjoins the county in which the trial was held. Huffman v. State, 1915, 183 Ind. 698, 109 N.E. 401,109 N.E. 748.

No statutory reason was shown in the deposition itself for the taking thereof, nor was it shown at the time of its offer that any statutory ground existed authorizing the introduction of the same in evidence.

At the time that the plaintiff offered to read the said deposition in evidence at the trial of this cause the defendants objected and asked leave to make proof concerning the whereabouts of the said witness, which leave was granted, and thereupon the defendants produced a witness who, out of the presence of the jury, testified in substance that he had seen the said Richardson on the Friday previous to the beginning of the trial at Princeton, which is located in a county adjoining Warrick; that he had talked to the said witness, who informed him that he was at Princeton to see an official of the Southern Railway, and that he intended to return to Evansville when he had finished said mission. When the witness had concluded his testimony the court overruled the defendants' objection, and said deposition was thereupon read in evidence.

Depositions are authorized to be taken by statutory authority by either party, in vacation or term time, at any time after service of summons, without an order of court therefor, Burns' 1933, § 2-1506, which further specifically provides as follows:

‘They may be used in the trial of all issues, in any action, in the following cases:

‘First. Where the witness does not reside in the county, or in a county adjoining the one, in which the trial is to be held, or...