Thomas v. City of Huntington

• Decision Date: 14 November 1923
• Docket Number: No. 11478.,11478.
• Citation: Thomas v. City of Huntington, 80 Ind.App. 476, 141 N.E. 358 (Ind. App. 1923)
• Parties: THOMAS v. CITY OF HUNTINGTON.
• Court: Indiana Appellate Court

80 Ind.App. 476

141 N.E. 358

THOMAS

v.CITY OF HUNTINGTON.

No. 11478.

Appellate Court of Indiana, Division No. 2.

Nov. 14, 1923.

Appeal from Circuit Court, Huntington County; Eben Lesh, Special Judge.

Action by Martha A. Thomas against the City of Huntington.Judgment for defendant, and plaintiff appeals.Reversed, with directions to grant new trial.

Superseding opinion in139 N. E. 285.

This action was instituted by Martha A. Thomas v. The City of Huntington to recover damages on account of personal injuries alleged to have been received by an accident due to a defective street.It is averred in the complaint that the plaintiff was walking on and along the traveled portion of the street; that there was no sidewalk on either side of the street; that a delivery wagon drawn by two horses approached her from the rear; that to avoid the approaching team she stepped aside from the traveled portion of the street; that the city had graded and improved the street by depositing cinders thereon; that in making the grade a portion of a barbed wire was imbedded in the street, and the remaining portion of the wire was left exposed; that the exposed portion of the wire was on or near the surface of the ground; its presence there being obscured by grass and weeds, and one end thereof being fastened to a post at the south side of the street; that her left foot caught under the wire, and thereby she was thrown violently to the ground; that as a result of the fall the radius of her left arm was fractured, and various parts of her body were severely bruised.The trial resulted in a verdict and judgment for the defendant.The assignment of error challenges the ruling on the motion for a new trial.The specific contentions are that the court erred in two of the instructions given and in refusing to give two of the instructions requested by the plaintiff.

The recitals in the bill of exceptions, which are essential to an understanding of the case presented here, are as follows:

“That the plaintiff tendered to the court, and requested the court to give, certain instructions numbered consecutively from 1 to 10 inclusive, and that the court gave all of them, excepting 3, 6, and 10; that the defendant tendered to the court, and requested the court to give, certain instructions numbered consecutively from 1 to 19, and that the court gave 12, and rejected 7 of them; that the bill contained all the instructions given and all the instructions refused; that the court gave no instructions on its own motion”; and “that said instructions and each of them were applicable to the evidence.”

The bill contains no evidence whatever and no statement by the trial court concerning the facts.

Samuel E. Cook and Otto H. Krieg, of Huntington, for appellant.

William D. Hamer, of Huntington, for appellee.

DAUSMAN, J.(after stating the facts as above).

[1] It clearly appears that the appellant attempted to prepare the record for this appeal in accordance with that provision of the Code which authorizes an appeal from a “reserved” question of law.Section 669, Burns' 1914.That section provides a special method by which a question of law may be presented on appeal; prescribes a special method for preparing a bill of exceptions; and designates what the bill shall contain.The commendable purpose of the special procedure thus provided is to enable an aggrieved litigant to present for review a question of law without occasioning the needless expense of bringing up all the evidence, and without burdening the appellate tribunal with irrelevant portions of the record.But that special procedure is unavailing, unless the transcript shows a compliance with all the essential requirements of the Code relating thereto.Elliott, Appellate Procedure, § 233, et seq.;Ewbank's Manual, § 96 et seq.One of the essential requirements is that the court shall cause the bill to be so made that it will embrace, distinctly and briefly, so much of the record only as, when taken together with the statement of the court, will enable the appellate tribunal to apprehend the particular questions to be decided.Since in this casethe bill contains no evidence whatever, and the only statement of the trial court embraced therein is in the form of a certificate reciting that each instruction requested by the plaintiff and each instruction requested by the defendant is applicable to the evidence, it follows that the bill is not sufficient to present, by virtue of the special procedure now under consideration, any question as to the correctness of any ruling on instructions given or refused.

[2] As to the instructions given, the appellant can derive no benefit from that other provision of the Code which prescribes a method by which the ruling on instructions may be presented for review on appeal without bringing up the evidence.Section 691, Burns' 1914.Notwithstanding the explicit language of section 691, the rule has been...