Terre Haute & Indianapolis Railroad Company v. McCorkle, 17,039

Citation40 N.E. 62, 140 Ind. 613
Case DateMarch 20, 1895
CourtSupreme Court of Indiana

From the Marion Circuit Court.

The judgment is reversed and the cause remanded, with instructions to sustain the motion for a new trial.

W. H H. Miller, F. Winter and J. B. Elam, for appellant.

J. S Duncan and C. W. Smith, for appellee.


McCabe, C. J.

The appellee sued the appellant in a complaint of two paragraphs to recover damages for a personal injury in the loss of his arm, caused by the alleged negligence of appellant. The issues formed upon the complaint were tried by a jury, resulting in a verdict and judgment for appellee for $ 6,000 over appellant's motion for a new trial. The error assigned here is the overruling appellant's motion for a new trial. Among the reasons assigned therefor in the motion, is the giving of certain instructions asked by the appellee. We are met at the threshold of the investigation of the question sought to be raised on the instructions, by the contention that the exception to the giving of the instructions, and the specification in the motion for a new trial were such as to present no question for our consideration and decision. The exception reads as follows: "To the giving of each and every one of which instructions the defendant did then and there except."

The specification in the motion for a new trial is as follows "That the court erred in giving to the jury each of the instructions numbered from one (1) to sixteen (16) inclusive, which were given by the court to the jury."

Of this exception and specification, appellee's learned counsel say: "The court gave but sixteen instructions, so that the assignment of alleged error in the motion for a new trial is equivalent to an assignment that the court erred in giving each of the instructions by it given to the jury. * * * Such an assignment * * * * would require the court to examine the whole series. We think such a practice is not permissible. It is true that the motion alleges that the court erred * * * in giving each of the instructions given; this, in a certain sense, makes the allegation of error several as to each of the instructions * * given. But that suggestion does not reach or answer the objection which we make. Our proposition is that the motion for a new trial must point out specifically the particular instruction or instructions to which the trial court's attention is sought to be called. Or to use the language of this court in the case of Jones v. Layman, 123 Ind. 569, 24 N.E. 363 (573), 'no allegation of error in a motion for a new trial is sufficient which would require the court to take up the instructions asked and refused, and read them through one by one for the purpose of ascertaining, if at all, where it had erred.'"

In that case the eighth cause for a new trial designated no particular instruction to which objection was made. But that is not the case here. The fifth cause for a new trial in this case designates sixteen different instructions, to each one of which a separate objection is made, as is practically conceded by appellee's learned counsel. The quotation they make from Jones v. Layman, supra, is somewhat misleading, unaccompanied by a paragraph next to and preceding the one they quote.

It reads thus: "If counsel were insisting in the court below for a new trial because of alleged error of the court in refusing to give instructions asked by the appellant, it was their duty to point out in their motion for a new trial severally by their respective numbers the instructions relied upon." That is the very thing the appellant has done in this case, as is practically conceded by the learned counsel for appellee.

There would have been no room for appellee's contention, unsound as it is, had the objection been to each of the instructions numbered from one to fifteen. That would have left the sixteenth instruction unobjected to and would have obviated appellee's contention.

Two things are required in taking exceptions to several rulings and making the same a cause or reason in the motion for a new trial. First, the exception must be so taken as to require the trial court to re-examine and review each particular ruling by itself alone considered, regardless of the other rulings complained of. Second. each particular ruling must be pointed out in the exception and the motion for a new trial with such a degree of certainty as that both the trial court and the appellate tribunal can turn to and read and review each particular ruling objected to, and know while so engaged that it is not wasting its time on something not objected to. This principle does not depend on the number of rulings made, instructions given or instructions refused in the trial court. It permits every ruling of the trial court to be brought under review, and that right does not depend on whether any or all of the objections and exceptions were well taken or not. The right to object and except is one thing and the right to have such objection and exception sustained is another and quite a different thing. Here the trial court was informed by the exception and the specification in the motion for a new trial exactly and precisely what it was that the appellant complained of. It was informed that the appellant claimed and insisted that it had erred in giving each one of the sixteen instructions. That is, that the trial court had committed sixteen separate and distinct errors and it was asked to review its ruling as to each one of them. It is difficult to see how the correctness of each one of such instructions could be any more separately presented for review. It is not denied by the learned counsel for appellee that if the exception and motion for a new trial had singled out each instruction as one separate ground of exception and made the giving of each one of them a separate ground for a new trial, making sixteen reasons or grounds for a new trial instead of one, as was done, that the correctness of every one of the sixteen instructions would have been presented for review, and yet they practically admit that the exception and the specification in the motion for a new trial present each one of them as separately as if each one was made a separate ground of exception and separate ground for a new trial. And certain it is that the language of the exception and motion has the same meaning as if each instruction had been made a separate ground of exception and motion for a new trial. We therefore hold that each one of the instructions given is presented here for review.

The fourth instruction given is the first one urged upon us as error. Whether it is error or not depends on what construction the complaint is to receive.

The particular negligence complained of as the cause of appellee's injury consisted of two separate defects in a box car suffered by the appellant to be on the switching tracks of appellant, and which the appellant required the appellee, as switchman in its employ, to couple to a train of cars in its switch yards. The defects complained of were a defective drawbar and a bent iron step or stirrup close to the end of the car where the defective drawbar was. And the question of construction is whether the two defects were different elements of one and the same cause of action, dependent on the existence of both combined, or whether each defect was a separate and independent cause of action stated in the same paragraph of the complaint. As to this point both paragraphs of the complaint are alike.

So much of the first paragraph as is essential to the determination of the question, is as follows: "That on said 28th of July, 1892, a car of the defendant, which had been originally thus constructed, was standing upon one of the switching tracks of the defendant in the yard aforesaid; that said car was in a damaged condition in the following particulars, to wit: The plate or iron furthermost beneath the car, used in connection with the said spring, had been broken or lost from its place and was wholly gone, so that when the drawbar came in contact with the outer plate and such outer plate came in contact with the spring at one end and the spring at the other end failed to come into contact with the inner plate at the other end, and as a result the spring would fail to operate; and when the drawbar was driven in under the car, the spring not operating, it was not forced back to its proper place, but the head of the drawbar remained very close to the frame or the body of the car; that when the drawbar is in this condition, the danger to the person attempting to couple said car to another car is increased in a very high degree; that in addition to the foregoing defective condition of the car, the iron step or stirrup on the side of the car, at the same end, had been bent longitudinally with the car in such a manner that it projected from six (6) to eight (8) inches beyond the end of the car; that the defendant knew of the damaged, defective and dangerous condition of the car, but in no manner gave this plaintiff any warning that it was in such defective and dangerous condition, and this plaintiff had no notice in any manner of such defective and dangerous condition; that on the night of said 28th day of July, 1892, and after it had become so dark that such defects could not be discovered, the said Grant Johnson, thus in charge of the locomotive engine used for the purpose of backing certain other cars to said car for the purpose of coupling on to the same, directed this plaintiff to attend such train in the process of making up to such car in such defective condition, and make such coupling; that such coupling was to be made at the end of said car at which said drawbar and...

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1 cases
  • Terre Haute & I.R. Co. v. McCorkle
    • United States
    • Indiana Supreme Court of Indiana
    • March 20, 1895
    ......A. Brown, Judge.        Action by Marion McCorkle against the Terre Haute & Indianapolis Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.Miller, ......

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