The Ohio And Mississippi Railway Company v. Stein

• Decision Date: 21 December 1894
• Docket Number: 17,052
• Citation: 39 N.E. 246,140 Ind. 61
• Parties: The Ohio and Mississippi Railway Company v. Stein
• Court: Indiana Supreme Court

39 N.E. 246

140 Ind. 61

The Ohio and Mississippi Railway Company v. Stein

No. 17,052

Supreme Court of Indiana

December 21, 1894

From the Jefferson Circuit Court.

The judgment is affirmed.

J McGregor and E. Barton, for appellant.

C. A Korbly and W. O. Ford, for appellee.

OPINION

Howard, J.

The appellee was a brakeman on one of appellant's freight trains, and has brought this action to recover damages for injuries alleged to have resulted from the failure of appellant to furnish safe appliances for the performance of his duties as such brakeman. The car upon which appellee was injured was loaded with heavy stone, and was, at the time detached from the engine in order to be run in upon a switch. The engine passed the switch and then stood upon the track, while the switch was opened to allow the car upon which appellee stood to enter the switch. It was, however, then discovered that many cars stood upon the switch, and appellee applied the brakes to reduce the speed of the stone car upon which he was standing, so that it might not crash against the cars on the switch; but he found that when the brake was turned so that it was wound up fully the brake shoes were not brought upon the car wheels, and it became impossible to reduce the speed of the car. The switch was then shut; and it is alleged, that appellee then signalled to the engineer to go ahead with the engine so as to avoid a collision on the main track, between the car and the engine; that the engineer tried to use his levers to set the engine in motion, but could not do so, and the car came with great force upon the engine, causing a displacement of the stone upon the car, by reason of which appellee's foot was injured.

The complaint was originally in three paragraphs.

In the first it was alleged that the accident was caused by a defect in the cylinder-cock, which appellant had neglected to repair, by reason of which the levers of the engine could not be moved away from the coming car of stone.

In the second paragraph it was charged that the brake upon the stone car was defective, so that appellee was unable to stop the car in time to avoid the collision; and, in the third paragraph, it was alleged that both the brake and the cylinder-cock were negligently allowed by the appellant to remain in a defective condition.

In the former appeal, 133 Ind. 243, these paragraphs of complaint were held good. On the return of the case to the court below, a fourth paragraph was added, in which the main allegations of the other paragraphs were repeated, and in which other allegations as to defects in the engine were made.

We do not think this fourth paragraph of the complaint stated a new cause of action. The restatement of the original cause of action, whether in the form of an amendment to the complaint or by means of an additional paragraph, does not constitute the bringing of a new action. The rule, as approved by this court in the case of Blake v. Minkner, 136 Ind. 418, 36 N.E. 246, is that "where the amendment does not change the cause of action nor deprive the defendant of any defense which he had to the original suit, the plaintiff's right shall be preserved." There was no invasion of appellant's right in the filing of this fourth paragraph. See, also, Jeffersonville, etc., R. R. Co. v. Hendricks, Admr., 41 Ind. 48; Evans v. Nealis, Admr., 69 Ind. 148; Chicago, etc., R. R. Co. v. Bills, 118 Ind. 221, 20 N.E. 775.

Instruction eight, asked by the appellee and given by the court, being based upon the allegations of the fourth paragraph, was, therefore, good, and the court did not err in giving the same to the jury.

At the proper time the appellant filed a request in writing for a struck jury, and notice of the time and place of striking the jury was given by the clerk. A list of forty names was made out by the clerk, and at the time and place designated the appellant and appellee, alternately, struck off twenty-four of said names. The clerk returned into court the names of the sixteen remaining jurors, whereupon the appellant excepted and moved the court to reject the list of forty jurors selected by the clerk and also the list of sixteen jurors returned into court, and also to require the jury commissioners to select the list of forty persons as jurors. This motion the court took under advisement and afterwards overruled, and a venire for the sixteen struck jurors was duly issued. Appellant excepted to the overruling of the motion to reject the list of forty persons selected by the clerk and to the other rulings connected therewith, and time was given during the term to file a bill of exceptions. Appellant, however, failed to file such bill of exceptions, and we do not think that any question is, therefore, presented on the ruling complained of. Besides, we do not think that parties could thus join in striking a jury and afterwards object to the persons thus selected, giving no reason but simply the manner of selection, in which appellant had voluntarily participated. Appellant did not, moreover, object to the panel when they came into the jury box to try the case. A party can not thus take chances on securing a favorable verdict and afterwards object to the manner in which the jury was selected. Even, therefore, if the question were before us, we do not see that any error was committed. It is not said that the jury selected was in any way unfitted to try the cause.

It is claimed as error that the court refused to allow proof to be made by the fireman on the engine, as to what was the practice of the engineer "when running switches were being made, as to throwing his reverse lever in the forward motion after having stopped his engine."

The ruling of the court was that the witness might say what the engineer did on that occasion, but not what had been his practice. Even if it were competent to show the engineer's practice, we do not think the witness was himself competent to give evidence on the subject. He testified, as preliminary, that he had been serving for about three months as fireman with the engineer; and when asked whether he had ever made any other "running switches," answered: "Yes, sir, I think we had."

If the engineer had in fact any such practice as inquired for, we think this fireman was not shown to have sufficient knowledge to testify as to the matter. The engineer himself was competent to answer as to such practice, if it were competent to make proof of the practice. He did testify, and very fully, not as to his practice simply, but as to what he did on the occasion of the accident. It was what the engineer did on that occasion, and not what he may have done at other times, that was competent. No harm, therefore, could have been caused by the exclusion of the fireman's testimony as to the engineer's practice, even if he were shown qualified to give such testimony, which we think he was not.

Whether it was error for the court to permit appellee to testify that he was a married man, we need not decide, for the court expressly withdrew this evidence from the jury. It may be, as counsel for appellant argue, that evidence might be so vital to the decision of a case that even by withdrawing it from the jury the court could not cure the error of its admission but we do not think this evidence, even if objectionable, was of such a material character as that its express withdrawal by the court would not have cured any error occasioned by its introduction. See Elliott App. Proced., section 701, and...