The Ohio And Mississippi Railway Co. v. Judy
| Decision Date | 18 October 1889 |
| Docket Number | 13,921 |
| Citation | 22 N.E. 252,120 Ind. 397 |
| Parties | The Ohio and Mississippi Railway Company v. Judy |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
Judgment affirmed, with costs.
W. H DeWolf, S. N. Chambers and E. H. DeWolf, for appellant.
W. A Cullop, G. W. Shaw and J. S. Pritchett, for appellee.
This is an action by the appellee against the appellant to recover damages.
The complaint charges that the plaintiff was a stock dealer, and on the 1st day of December, 1886, he shipped on the defendant's road a car of stock at Sumner, Illinois, consigned to Cincinnati, Ohio, and received from the agent of the defendant a shipping bill, which entitled him to free transportation over the defendant's road to Cincinnati, to take care of his stock; that at Washington, Indiana, he was forcibly ejected from the train in the night-time, some distance from the depot, and in walking along the platform of the depot he fell upon a truck, and sustained serious injuries, greatly bruising, tearing, and lacerating his legs, arms, and body, whereby his right arm and shoulder are permanently disabled; that he has suffered, and will continue to suffer, greatly both in body and in mind.
The action was commenced in the Knox Circuit Court, and by change of venue sent to the Sullivan Circuit Court, where a trial was had, resulting in a verdict for the plaintiff for five thousand five hundred dollars.
The defendant filed a motion for a new trial, which was overruled, and exceptions taken, and judgment rendered for the plaintiff on the verdict.
The appellant assigns as error the overruling of a motion to strike out questions and answers in depositions. The ruling of the court on the motion to strike out questions and answers in the depositions was not assigned as a cause for a new trial, and the question is not properly before this court for a review of the ruling of the trial court. Jeffersonville, etc., R. R. Co. v. Riley, 39 Ind. 568; National Bank and Loan Co. v. Dunn, 106 Ind. 110, 6 N.E. 131; Hatton v. Jones, 78 Ind. 466.
There is but one other question discussed by counsel in their brief, and that is as to the amount of damages assessed. It is claimed that the damages are excessive, and that the verdict ought to be set aside and a new trial granted.
This question is properly presented in the motion for a new trial.
The appellate court will not reverse a case on the ground of excessive damages unless they appear at first blush to be outrageous and excessive. Town of Westerville v. Freeman, 66 Ind. 255; Carthage Turnpike Co. v. Andrews, 102 Ind. 138, 1 N.E. 364.
There was evidence in this case tending to prove that the appellee was a stock dealer in Sumner, Illinois; that in addition to being engaged as a stock dealer he was also engaged in farming, livery, and other business, having partners in some of the various kinds of business in which he was engaged; that he shipped a car-load of stock from Sumner Illinois, to Cincinnati, Ohio, and received a bill of lading, or contract of shipment, entitling him to ride upon the freight train carrying the car of stock; that he boarded the train; the first conductor in charge of the train recognized his right to ride upon the train, and punched the contract in the usual way of punching tickets, and carried him to Vincennes, Indiana. At that point another conductor took charge of the train, and refused to recognize the right of the appellee to ride by virtue of the contract, and ordered him off the train, ordering him to get off the train or pay his fare, and refused to carry him further than Washington, Indiana, unless he paid his fare. The appellee did not have a sufficient amount of money with him to pay his fare to Cincinnati, and at Washington the train stopped with the car in which appellee was riding seventy-five or one hundred rods from the depot, and in pursuance to the orders of the...
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