was dealing alone with the complaint and plainother instructions the jury were informed plaintiff's right to recover on proof thereof, and by tiff could not recover unless free from contributory negligence. 2. TRIAL 296(1)-INSTRUCTIONS-Cure. Instructions are not erroneous because not court upon the second trial. Furthermore, | negligence, where by such instructions the court the answers before the court on the former appeal are now in evidence, and tend to contradict the present contentions of appellant. In appellant's brief it states that the former answer erroneously alleged that the loan agreement "represents the premiums for the period that said policy was dated back, less the expense of carrying said insurance for said period of seven years," when it should have alleged that it represented the reserve of the policy. In its principal brief appellant states that: applying to all the separate issues involved, where such issues are covered by other instructions given. 3. APPEAL AND ERROR 1064(1)—HARMLESS ERROR-INSTRUCTIONS. In personal injury action, any error in instructions as omitting reference to contributory negligence was harmless, where there was no evidence of such negligence. 4. RAILROADS 296 The "Under this testimony there is no ambiguity in the language of the indebtedness clause contained in the table of values. * question is one of fact, and it would seem that undisputed testimony of the highest type as to such fact would govern. If 'amount upon which the above guaranties are based' can reasonably mean either of two amounts in view of the whole contract, then the language is ambiguous. The evidence shows it cannot." These statements show that appellant's theory is that the amended paragraphs of answer presented to the trial court a question of fact, to be determined from the evidence; that this question of fact was presented to remove the ambiguity this court declared to exist in the writings which constitute the insurance contract. The expert testimony tended to sustain the construction of the policy for which appellant contends, but it is by no means conclusive. This proposition is emphasized by the rule of construction declared and followed in the former opinion. COLLISION WITH STREET CAR-PROXIMATE CAUSE. A railroad company was liable for a street car, passenger's injuries from collision of its train with street car at a crossing if its negligence proximately contributed thereto. 5. RAILROADS 288-COLLISION-DUTY TO STREET CAR PASSENGER. street car crossing its tracks, and the street car A railroad company owes a passenger in a company operating the car, the same duty as owed to pedestrians and drivers of private vehicles, viz. ordinary care and diligence not to inflict injury on them in operating its engines and In action against railroad for damages from collision with street car in which plaintiff was riding, any error in instructing that the street car company owed plaintiff, as passenger, only ordinary care to avoid injury from collision, was harmless, since the railroad company had the right to rely only upon the street car company's duty towards it, which was that of using only ordinary care to avoid the collision, and it could It thus appears that the result of this ap- not rely on the street car company's discharging peal is the same whether the decision on a higher duty of care towards its passengers. the former appeal be held to be the law of 7. TRIAL ~296(7) — INSTRUCTIONS — Allowthe case as to all questions sought to be pre- ING CONSIDERATION OF ALL THE EVIDENCE. sented on this appeal, or whether the amend-questions of fact "under all the evidence in the An instruction requiring determination of ed answers be considered as above indicat- case" was not erroneous because of the words ed. The trial court decided the questions of quoted, where, in connection with preceding fact against appellant. There is some evi- portions of the instruction, it was apparent that the jury could not have understood that they dence to sustain the decision. were to consider any evidence in determining such questions, except such as bore thereon. 8. APPEAL AND ERROR 1066 - HARMLESS ERROR-INSTRUCTIONS. Appellant having failed to obtain a finding in its favor upon the issue presented to avoid the former opinion, that opinion in effect controls this appeal, and compels an affirmance of the judgment. We have considered all the questions that are duly presented by the briefs. Judgment affirmed. All concur, except BATMAN, P. J., who did not participate in the decision. (67 Ind. App. 571) Any error in an instruction as nermitting the jury to determine questions of fact upon evidence not bearing thereon was harmless, where appellant failed to point out any evidence which could have improperly influenced the jury in such determination. 9. RAILROADS 288-CROSSING ACCIDENTDUTY TO USE AIR BRAKES. Although there was no statute requiring air brake car equipment and use thereof, yet whether it was a railroad company's duty to use EVANSVILLE & T. H R. CO. v. HOFFMAN.* the air brakes with which its cars were in fact (No. 9466.) equipped to avoid a crossing collision with a street car depended on whether such acts were (Appellate Court of Indiana, Division No. 1. reasonably necessary in the exercise of its duty Dec. 20, 1917.) 1. TRIAL 296(4, 5)—INSTRUCTIONS-Cure. In a personal injury action against a railroad, instructions hypothesizing the finding of negligence, proximate cause, and consequent in jury and damages, and thereon directing verdict for plaintiff, were not erroneous for failing to hypothesize plaintiff's freedom from contributory of ordinary care. TION FOR JURY. 297(6)-COLLISION-QUES In street car passenger's action against railroad for damages from collision of a train with the street car, whether it was reasonably necessary for the railroad company in the use of ordinary diligence to avoid the collision to use the air brakes on its cars was for the jury. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes An instruction that defendant railroad owed no duty to have its cars equipped with air brakes merely to avoid injury to street cars which might be imperiled at crossings by the negligence of persons in charge of them was not in conflict with an instruction that failure of defendant's servants to use air brakes with which cars were equipped to avoid collision with street car in which plaintiff was passenger could be considered on the issue of defendant's negligence. 12. Appeal and ERROR 882(12), 1033(5)— HARMLESS ERROR-FAVORING APPELLANT. Any conflict of a correct instruction with one given at appellant's request and more favorable to appellant than the law warrants is harmless. 13. APPEAL AND ERROR 1078(1)—WAIVER OF ERROR. An alleged error is waived by failure to properly present it on appeal. 14. APPEAL AND ERROR 761-BRIEFS. Where the only reference in appellant's propositions or points to alleged error in refusing to give a requested instruction is that, "The court erred in refusing to give instruction No. requested by" appellant, "set out, ante, p. no question is presented for consideration; such statement not being a compliance with rule 22, cl. 5 (55 N. E. vi), governing the preparation of briefs. BRIEFS 15. APPEAL AND ERROR 761 CURE OF DEFECTS. Failure to comply with rule 22, cl. 5 (55 N. E. vi), requiring separate statement of errors relied on, etc., is not cured by discussion of the alleged error in the argument. 16. WITNESSES 398(3) IMPEACHMENT OFFENSES. Where witness on cross-examination denied that he had been indicted in another state for violation of liquor laws and laws forbidding sale of cigarettes to minors, the cross-examining party could not impeach him by evidence that he had been indicted and pleaded and paid his fines, and by introducing certified copies of criminal court records of that state showing such prosecutions. 17. WITNESSES 398(3)-IMPEACHMENT. While a court may, in its discretion, permit a witness to he interrogated as to specific extraneous offenses and conduct calculated to degrade him, and thus impair his creditability as a witness, the party propounding the interrogatory is bound by the answer the witness gives, and will not be permitted to introduce substantive evidence to contradict it. 18. TRIAL 142-QUESTION FOR JURY. Where reasonable minds may differ upon the conclusions and inferences to be drawn from the evidence, the question is one of fact for the court or jury trying the cause. BATMAN, P. J. Appellee brought this action in the court below to recover damages for personal injuries, which he alleged he received through the negligence of appellant in the operation of a switch engine and certain empty freight cars on one of its side tracks in the city of Vincennes, Ind., thereby causing a collision with a street car in which he was a passenger. Issues were formed, trial had, and judgment rendered for appellee. On appeal the judgment was re versed because of errors in instructions. Evansville, etc., R. Co. v. Hoffman (1914) 56 Ind. App. 530, 105 N. E. 788. A second trial of the cause was had in which a verdict was returned in favor of appellee, and judgment rendered accordingly. Appellant filed its motion for a new trial, which was overruled, and has assigned such ruling of the court as the error on which it relies for reversal. Among the reasons on which such motion for a new trial is based is the action of the court in giving instructions Nos. 5, 8, 9, 10, 11, and 12 on its own motion, which we will consider in the order named. [1-3] Appellant contends that the giving of said instructions Nos. 5 and 8 was error, for the reason that they each hypothesize the finding of negligence, proximate cause, and consequent injury and damages, and thereon direct the jury to return a verdict for appellee, but fail to hypothesize freedom from contributory negligence on appellee's part. We cannot concur in this contention. The court by the instructions in question was dealing alone with the complaint and the right of appellee to recover on the proof of certain facts alleged therein. By other instructions the court informed the jury that appellee could not recover unless at the time of the collision and injury he was in the exercise of ordinary care and diligence to avoid injury to himself. The instructions in question cannot be held to be erroneous, because they do not apply to all the separate issues involved in the case, where such issues were covered by other instructions given by the court. Newcastle Bridge Co. v. Doty (1906) 168 Ind. 259, 79 N. E. 485; Indiana, etc., T. Co. v. Keiter (1910) 175 Ind. 208, 92 N. E. 982; Harmon v. Foran (1911) 48 Ind. App. 262, 94 N. E. 1050, 95 N. E. 597; Appeal from Circuit Court, Daviess Coun- Home Tel. Co. v. Weir (1913) 53 Ind. App. ty; James W. Ogdon, Judge. Action by George Hoffman against the Evansville & Terre Haute Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed. John E. Iglehart, Edwin Taylor, and Eugene H. Iglehart, all of Evansville, Gardiner, Tharp & Gardiner, of Washington, Ind., and Homer T. Dick, of Chicago, Ill., for appellant. James M. House and Le Roy M. Wade, both of Vincennes, and A. J. Padgett and Alvin Padgett, both of Washington, Ind., for appellee. 466, 101 N. E. 1020. Moreover, there was no evidence on the trial of said cause that tended to prove that appellee's negligence contributed to his alleged injuries. Therefore the omission from such instruction of any reference to such negligence on the part of appellee, if error, was harmless. Kneefel v. Atkins (1907) 40 Ind. App. 428, 81 N. E. 600; Neely v. Louisville, etc., Co. (1913) 53 Ind. App. 659, 102 N. E. 455; Indianapolis, etc., R. Co. v. Waddington (1907) 169 Ind. 448, 82 N. E. 1030. [4-8] Appellant also contends that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes court erred in giving instruction No. 9, the the respective rights of the railroad company objectionable portion being as follows: "The persons who had control of the street car, which collided with the defendant's car on the crossing, were in duty bound to exercise ordinary care and diligence in running said street car upon and over said crossing, in such manner as to avoid causing any injury to passengers on said street car.' and the street car company with reference to the crossing in question, including the duty of those in charge of such street car to stop the same and permit the cars of appellant to pass over such crossing under certain conditions. It is apparent from the connection in which the words in question are used that the jury could not have understood that they were to consider any evidence, in determining the questions, to which such instruction was addressed, except such as properly bore thereon. Pittsburgh, etc., R. Co. v. Reed (1909) 44 Ind. App. 635, 88 N. E. 1080; Cohen v. Reichman (1913) 55 Ind. App. 164, 102 N. E. 284. Moreover, appellant has failed to point out any evidence which in our judgment could have improperly influenced the jury in determining the question covered by such instruction, had it been considered. The error, if any, was therefore harmless. Mosker v. Leonard (1911) 48 Ind. App. 642, 96 N. E. 485; Sanitary Can Co. v. McKinney (1913) 52 Ind. App. 379, 100 N. E. 785; Inland Steel Co. v. Gillispie (1914) 181 Ind. 633, 104 N. E. 76. Appellant claims that said instruction No. 11 invades the province of the jury, and is therefore erroneous. This instruction only purports to advise the jury concerning the duties of the respective companies toward each other, with reference to stopping at the crossing in question, and was correct within the scope it assumed to cover. When read in connection with the preceding instructions bearing on the same subject, we do not believe it is subject to the objection made by appellant. It insists that this statement renders such instruction erroneous, inasmuch as the street car company, whose passenger appellee was at the time of the collision, owed him the highest degree of care, and that it was harmful because the duties owed by the train crew depended somewhat upon the rights and duties of the street car crew, as the former had a right to believe, up to the moment of perceiving the contrary, that the latter would perform its duties, without negligence, and had a right to rely and act on such belief. If it be conceded that such street car company owed appellee a higher degree of care than was stated in such instruction, still it would not follow that its giving was harmful. On the trial of the cause the jury was required to determine whether appellant's train crew was guilty of any negligence in the operation of its said engine and cars which proximately contributed to appellee's alleged injuries. Under the law appellant owed appellee, and the company in whose street car he was a passenger at the time of the alleged collision, the same duty as it owed pedestrians and the drivers of private vehicles, viz. ordinary care and diligence not to inflict injury on them in the operation of its engine and cars. Vincennes T. Co. v. Curry (1915) 59 Ind. App. 683, 109 N. E. 62; N. Y., etc., R. Co. v. N. [9-12] By said instruction No. 12 the jury J., etc., R. Co., 60 N. J. Law, 52, 37 Atl. 627, was told, in substance, that notwithstanding 38 L. R. A. 516; Klinger v. Union T. Co., 92 the fact that there was no statute in force App. Div. 100, 87 N. Y. Supp. 864. The street in Indiana which required appellant to have car company owed the railroad company its cars equipped with air brakes, and to use only ordinary care to avoid the collision in the same in stopping its cars, when switchquestion, and that is all the care the rail-ing the same within the corporate limits of road company had a right to rely on in the the city of Vincennes, still, if they found operation of its engine and cars. It could from the evidence that at the time of the not rely on the street car company discharg-collision in which appellee received his aling a higher degree of care towards its pas-leged injuries appellant was so engaged, sengers, and thus relieve itself from liability with an engine and cars so equipped, that it to such passengers, for a failure to exercise ordinary care toward them. Dean v. Cleveland, etc., R. Co. (1917) 115 N. E. 92; Jacowicz v. Delaware, etc., R. Co., 87 N. J. Law, 273, 92 Atl. 946, Ann. Cas. 1916B, 1222. follows that the giving of such instruction, if error, was harmless. was proper in the practical conduct of such switching to use said air brakes to facilitate the stopping of its cars before they collided with the street car in which appellee was a It passenger, but appellant's servants in charge thereof failed to use such air brakes for such purpose, they could consider such failure, in connection with all the other evidence in the case, to determine the fact as to whether or not appellant exercised ordinary care and diligence to avoid the collision of the cars and the injury to appellee. Appellant contends that there was no law requiring it to equip its cars with air brakes and use the same to facilitate stopping while engaged in a switching operation, and hence the giving of such instruction was error. It may be [7, 8] Appellant also predicates error on the action of the court in giving said instruction No. 10 by the use therein of the following statement: "As to whether or not the conditions existed as stated in this instruction are all questions of fact which you are to determine under all the evidence in the case." The specific objection is directed to the words italicized by us. Preceding the use of appellant to so equip its cars and use the, plies with equal force here. We therefore same for such purpose, but it does not follow conclude that the giving of said instruction that it was not appellant's duty to use the No. 12 was not error. air brakes with which it is conceded such cars were equipped. Whether it was its duty so to do depended on whether such acts were reasonably necessary in the discharge of its duty to exercise ordinary care and diligence to avoid such collision and injury to appellee, and was a question for the determination of the jury. Pennsylvania Co. v. Hensil (1880) 70 Ind. 569, 36 Am. Rep. 188; Evansville, etc., R. Co. v. Hoffman (1914) 56 Ind. App. 530, 105 N. E. 788; United States Cement Co. v. Cooper (1909) 172 Ind. 599, 88 N. E. 69; American Hominy Co. v. La Forge (1916) 154 Ind. 600, 111 N. E. 8. The relevancy of such instruction becomes manifest when it is noted that the evidence discloses that the switch engine in question, on the occasion of the alleged collision and injury to appellee, was engaged in moving seven large refrigerator cars backward in the nighttime for a distance of over a mile on a track, a portion of which ran through a populous portion of a city, and passed over highways and at least one street car line, and that such engine and cars were equipped with air brakes ready for use when connected. It is further urged by appellant against said instruction that it is in hopeless conflict with instructions Nos. 7, 8, and 10 given on its request, and hence confusing to the jury. By instructions Nos. 7 and 10 the jury was informed, in substance, that appellant owed no duty to equip its cars with air brakes, and have them connected and in use, merely in order to avoid injury to street cars or other vehicles which might be placed in peril at crossings through the negligence of persons in charge of them or to avoid injury to persons who voluntarily and negligently put themselves in danger at such crossings. This was a correct statement, and not in conflict with said instruction No. 12. The conflict between said instruction and instruction No. 8, given by the court at the request of appellant, grows out of the fact that the latter instruction is erroneous in stating as a matter of law: "That it is not negligence for a railroad company to fail to connect, use, and operate air or power brakes on such of its engines or cars, as are being handled in yard service, or by local trains performing switching service." Such failure may not have been unlawful, and therefore negligence per se, but it may have been an act of negligence, nevertheless, depending on existing conditions, and hence was a question for the jury. However, since said instruction No. 8 was given at the request of appellant, and was more favorable to it than the law warrants, any such conflict was harmless. Appellant also claims that said instruction No. 12 contains the same objectionable feature urged against instruction No. 10, given by the court on its own motion, but what we have said regarding the alleged error in that instruction ap [13-15] Appellant claims that the court erred in refusing to give instruction No. 9 tendered by it. It has been repeatedly held that a failure to properly present an alleged error on appeal waives the same. Duffy v. England (1911) 176 Ind. 575, 96 N. E. 704; Parker v. Boyle, Receiver (1912) 178 Ind. 560, 99 N. E. 986. A proper presentation of such error required that appellant's brief should "contain under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them," as provided by clause 5 of rule 22 (55 N. E. vi) governing the preparation of briefs. The only reference made by appellant in its propositions or points to the error in question is as follows: "The court erred in refusing to give instruction No. 9 requested by defendant, and set out, ante, p. 19.” Such statement is not a compliance with said rule, and presents no question for our consideration. Wellington v. Reynolds (1912) 177 Ind. 49, 97 N. E. 155; Wysor Land Co. v. Jones (1899) 24 Ind. App. 451, 56 N. E. 46; Hart v. State (1914) 181 Ind. 23, 103 N. E. 846; Inland Steel Co. v. Smith (1907) 168 Ind. 245, 80 N. E. 538; McMurran v. HanAn omission to num (1916) 115 N. E. 238. comply with such rule cannot thereafter be cured by a discussion of the alleged error in the argument. Ewbank's Manual of Practice, § 180a; Pittsburgh, etc., R. Co. v. Lightheiser (1906) 168 Ind. 438, 78 N. E. 1033; Michael v. State (1912) 178 Ind. 676, 99 N. E. 788; Wolf v. Akin (1913) 55 Ind. App. 589, 104 N. E. 308; Moore v. Ohl (1917) 116 N. E. 9. [16, 17] Appellant predicates error on the action of the court in excluding certain evidence offered by it. It appears that one Dr. Lex was called as a witness for appellee, as to the nature and extent of the injuries for which he sought to recover damages, and was asked on cross-examination by appellant, if he had not been indicted in Breckenridge county, Ky., for violation of the liquor laws of that state, and for violation of the law in selling cigarettes to minors. In his answers to such questions he denied that he had been so indicted. Appellant afterwards sought to impeach such witness by proving by one Claud Mercer that while he was the commonwealth's attorney for said county he saw the witness Lex arraigned on several indictments or informations, and that he pleaded guilty and paid his fines, and by introducing in evidence certified copies of certain records of the court of said county, having criminal jurisdiction, showing that said witness was prosecuted on indictments and on informations in said county for the violation of the liquor laws, and for selling cigarettes RECITAL OF EVIDENCE. BRIEFS A brief showing by a proper heading that the propositions or points, numbered from 1 to 7, bear on the alleged errors of the court in striking out affirmative answer and a cross-complaint, and another heading that the propositions or points, numbered from 8 to 77, bear on the alleged error of the court in overruling their motion for a new trial, will be considered, although there are no subheads, if the propositions or points themselves indicate what specific errors they apply to, as by giving the numbers of the instructions to which they are intended to be ap to minors. On appellee's objections the courting necessary to copy the assignment of errors excluded such evidence, to which rulings ap-into the brief bodily. pellant excepted. It is apparent from the 3. APPEAL AND ERROR ~757(3) evidence offered that appellant was seeking A recital of the evidence in the brief of apto impeach the witness on a collateral mat-pellants does not require rejection where a goodter, involving his prosecution for one or more faith effort has been made to conform to praccriminal offenses. As affecting appellant's appellees' brief, the court can intelligently contice, especially where, when considered with right so to do, it is well settled in this state sider the questions determined therein, and it is that, while a court may, in its discretion, immaterial that appellees disavow any intention permit a witness to be interrogated as to of supplying any omission in appellants' brief. BRIEFS specific extraneous offenses and conduct cal-4. APPEAL AND ERROR 761 HEADING FOR PROPOSITIONS AND POINTS culated to degrade him, and thus impair his SUBHEADS. creditability as a witness, the party propounding the interrogatory is bound by the answer the witness gives, and will not be permitted to introduce substantive evidence to contradict it. City of South Bend v. Hardy (1884) 98 Ind. 577, 49 Am. Rep. 792; Dunn v. State (1904) 162 Ind. 174, 70 N. E. 521; Rock v. State (1915) 110 N. E. 212; Johnson v. Samuels (1917) 114 N. E. 977. It follows that the court did not err in excluding such evidence. [18] It is finally urged that the verdict is 5. APPEAL AND ERROR 757(3) BRIEFS not sustained by sufficient evidence and is OBJECTIONS AND EXCEPTIONS TO EVIDENCE. contrary to law, based on the ground that Where objections to evidence only appear there is no evidence in the record that any in the argument in a brief, and then only by innegligence of appellant contributed to cause attempt to follow rule 22, fifth clause (55 N. E. serts, they cannot be considered, as it shows no appellee's injury, while the undisputed evi-v), providing that they should be contained in dence shows that the negligence of the street car company was the sole proximate cause of such injury. We have carefully examined the evidence in this regard, but fail to find such a state of facts shown thereby as will warrant this court in sustaining appellant's contention, and thereby declaring, as a matter of law, that appellant was not guilty of any act of negligence which proximately contributed to appellee's injury. The rule is plied. the concise statement of so much of the record MATTERS REVIEWABLE INSTRUCTIONS-SAVING EXCEPTIONS. Burns' Ann. St. 1914, § 561, providing that exceptions to instructions may be taken by the entry of a specified memorandum at the close thereof, signed by the excepting party or his counsel, did not repeal section 560, providing that the judge could sign such memoranda, and either way is sufficient. EXCEPTIONS, BILL OF well settled that, where reasonable minds We find no available error in the record. FILING. 39(2) — TIME FOR A bill of exceptions containing the instructions need not necessarily be filed at the term at such term; it being sufficient if filed within in which they were given, or within a time given the time given on overuling motion for new trial. 8. APPEAL AND ERROR 662(3) BILLS OF EXCEPTIONS-CONCLUSIVENESS OF RECITAL. Where a bill of exceptions recited the giving and refusing of instructions, and that appellant excepted "at the time," it is conclusive evidence as to such matter. 9. APPEAL AND ERROR 757(4) — BRIEFS REQUESTED INSTRUCTIONS-SIGNATURES. Although Burns' Ann. St. 1914, § 558, reGWINN et al. v. HOBBS et al. (No. 9474.)*quires that requested instructions must be sign(Appellate Court of Indiana, Division No. 1. ed, it does not follow that a brief is fatally de 10. APPEAL AND ERROR 1042(1) HARMLESS ERROR-PLEADING-GENERAL DENIALISSUES. In an action to quiet title, any defense can be proved under a general denial, and it is no error, where there is a general denial, to strike out an affirmative paragraph of the answer. 11. APPEAL AND ERROR 1042(1)-HARMLESS ERROR-PLEADING QUIETING TITLE. It was harmless error to strike out an affirmative answer in an action to quiet title, where defendant later filed a general denial and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |