The Noblesville Gas And Improvement Co. v. Teter
| Decision Date | 12 May 1891 |
| Docket Number | 59 |
| Citation | 27 N.E. 635,1 Ind.App. 322 |
| Parties | THE NOBLESVILLE GAS AND IMPROVEMENT COMPANY v. TETER |
| Court | Indiana Appellate Court |
From the Hamilton Circuit Court.
Judgment affirmed, with costs.
T. P Kane and T. J. Davis, for appellant.
R. R Stephenson and W. R. Fertig, for appellee.
This was an action brought by the appellee against the appellant to recover damages for the injury of a cow owned by the former, whereby said cow was rendered of no value, and the appellee was compelled to kill her; said injury having been occasioned by the falling of the cow into a trench for gas-pipe, which the appellant had excavated along a street of the city of Noblesville, and which the appellant allowed to remain open and unguarded.
The appellee recovered judgment for sixty dollars.
A motion for a new trial, made by the appellant, was overruled, and this ruling is assigned as error.
We are required first to notice the suggestion of the appellee that the evidence is not in the record.
The verdict was returned on the 13th of December, 1888, and judgment thereon was rendered the next day, after which, on the same day, the motion for a new trial was made and overruled. Thereupon, on the same day, a bill of exceptions containing the instructions given and those refused was filed. At the same term, on the 21st of December, a bill of exceptions containing the evidence was filed.
The appellee suggests that this second bill should not be regarded as a part of the record, because it does not appear that any time for the presentation of it was given when the motion for a new trial was overruled. It may be remarked that the date of the presentation to the judge is not stated in either of the bills.
We think that, under the provisions of the code of 1881, a bill of exceptions may preserve and bring into the record exceptions taken at the term at which it is signed and filed, and evidence given, and exceptions to rulings made, on the trial of a cause in which a motion for a new trial has been overruled at the term at which the bill is signed and filed, though the entry do not show that any time was allowed for the presentation of the bill, and the date of presentation be not stated in the bill. This court in such case will presume that time within the term for the presentation of the bill to the judge was given by parol at the proper time, and that the bill was presented to the judge within the time so allowed, and will regard the purpose of the statutory requirement that the date of presentation shall be stated in the bill as having been accomplished. Sections 626, 629, R. S. 1881; Board, etc., v. Eperson, 50 Ind. 275; Volger v. Sidener, 86 Ind. 545; Lake Erie, etc., R. W. Co. v. Fix, 88 Ind. 381; Boyce v. Graham, 91 Ind. 420; Landers v. Beck, 92 Ind. 49 (52); Hale v. Matthews, 118 Ind. 527, 21 N.E. 43.
The evidence showed that for some days before the injury in question, the appellant was excavating a trench east and west along a street of the city of Noblesville, near the south line of the roadway and north of the sidewalk, for the purpose of extending a line of pipe for conducting natural gas, and having made the excavation at the point where the animal was injured about two days before the injury, had laid gas-pipe, three or four inches in diameter, in the trench at that point in the forenoon of the day of the injury, and had covered the pipe and partly filled the trench with loose earth. The trench was about eighteen inches wide. The witnesses differed as to its depth, and as to the distance from the top to the loose earth in it. The jury might have found from the evidence that it was three feet deep, and that it was two feet from the loose earth to the top of the trench. At noon the workmen so engaged left the trench in such condition and went to dinner, and then to the appellant's shops, and did not return till nearly two o'clock in the afternoon. During their absence the trench was wholly unguarded.
One Royer lived on the south side of the street nearly opposite the place of the injury, in a new house, which, with some other new houses in the immediate vicinity, was not enclosed by fencing. Soon after noon Royer found said cow with four or five others at a pump south of his house, and by hallooing, but not throwing anything at them or using any violence, drove them off his premises. They passed over the sidewalk and across the trench, and the appellee's cow, in crossing, stepped into the ditch and sank in the soft earth and broke one of her hind legs, becoming thereby so injured that the appellee caused her to be killed. The other cows passed over the trench without injury.
By order of the board of commissioners of the county, and under an ordinance of the city, cows were permitted to run at large within the city in the day time. The appellee had turned out his cow to run at large in the morning of the day of her injury. She had been in the habit of ranging in this part of the town.
During the time the trench was being excavated, and while it remained open, the appellee had driven along the street, and in so passing had seen the open ditch, and in the forenoon of the day on which the cow was injured he had seen the workmen engaged in digging the trench.
It does not appear that when seen by the appellee the trench was in the dangerous condition in which it was left when the cow was injured, or that when seen by the appellee the trench was, or appeared to be, in a dangerous condition.
The appellant has urged objections to the first, second and fifth instructions given at the request of the appellee, and to the refusal of the court to give the third and eighth instructions asked by the appellant, and to the modification of its tenth instruction.
The objections to the giving of the first instruction asked by the appellee and the refusal to give the third instruction asked by the appellant, present the inquiry whether the court should have submitted to the jury the question as to whether the appellee was chargeable with contributory negligence in turning his cow out to run at large in the morning of the day on which she was injured.
Under the permission granted by the order of the board of commissioners and the ordinance of the city, the appellee could permit his cow to run at large without being chargeable with fault, unless knowledge of the fact that the appellant was excavating a trench which would not endanger her unless the appellant should be guilty of fault in connection therewith, would preclude appellee from the enjoyment of his valuable privilege.
The injury to the cow occurred when the trench was left in a dangerous condition, wholly unguarded, for the space of nearly two hours. The appellant had a right to make the excavation for the purpose of laying gas-pipe. But when the trench was in the condition in...
To continue reading
Request your trial