The Ohio and Mississippi Railway Company v. Dunn
| Decision Date | 17 May 1894 |
| Docket Number | 16,336 |
| Citation | 36 N.E. 702,138 Ind. 18 |
| Parties | The Ohio and Mississippi Railway Company v. Dunn |
| Court | Indiana Supreme Court |
Original Opinion of May 7, 1894, Reported at: 138 Ind. 18.
Counsel for the appellee have presented an earnest and able petition for a rehearing, to which we have given careful consideration.
It is insisted that in adopting imperfectly the method of excepting to instructions, as provided by section 535, R. S. 1881, the appellant was precluded from employing another method of reserving exceptions to such instructions, namely, by a formal bill of exceptions. This contention rests upon the doctrine that where two or more remedies are given by the law for the enforcement of a right, the election of one of such remedies is an exclusion of any other, as where the remedy employed is by suit to review the right of appeal is thereby cut off.
This doctrine has no application to the mere incidents of practice, but applies to remedies, and has for its object the securing of a final determination of a controversy by one decision and the avoidance of vexatious litigation where one remedy is exhausted and another is then employed for the enforcement of but one right of action.
With the practice of reserving exceptions to instructions, and making them a part of the record, section 534, R. S. 1881 has nothing to do, as that section was designed to enable the parties to learn, before arguing a cause, what instructions would be given, and to permit such instructions to be read as a part of the arguments.
It is further complained that in our holding that the trial court should have given the instruction that there was a failure of proof upon two of the elements of negligence alleged, we stand in conflict with the holding in Wabash, etc., R. W. Co. v. Morgan, 132 Ind 430, 31 N.E. 661, where an instruction was asked to the effect that there was a failure of proof to show incompetency and negligence on the part of an engineer, etc., which instruction was refused and the refusal sustained. In that case the evidence is not discussed with relation to the instruction, and we are not enabled to say that there was a failure of proof upon the question to which the instruction was addressed.
The suggestion in that case that the instruction was properly refused, under the averments of the complaint, and that the appellee might have recovered by reason of defects in the engine,...
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