Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Bowen

Cox, J.

Appellee’s decedent was a passenger on one of appellant’s trains. This train was wrecked by the explosion of a car-load of powder, which was a part of a freight train resting in transit on .a siding of appellant’s road and which the passenger train was passing as the explosion occurred. As a result of the explosion and the ensuing wrecking of the car in which he was riding the decedent received injuries from which he died and this action was brought by appellee to recover damages for his death. The cause was submitted to a jury on issues formed by general denials of each of three paragraphs of complaint and a general verdict for appellee was returned which was accompanied by answers to many interrogatories. This appeal is brought from a judgment for appellee on the general verdict.

1. It is first claimed that the trial court erred in overruling appellant’s motion to make each of the three paragraphs of appellee’s complaint more specific in its allegations of negligence. Answering the point made in appellant’s brief in presenting this alleged error at least as specifically and as efficiently as it is made, the court did *144 not commit reversible error in this ruling. The allegation of the facts constituting appellant’s negligence was specifically made and so certainly that the precise nature of the charge was clearly apparent and this was sufficient to justify the court in refusing to make it still more particularly definite and certain. §385 Burns 1908, §376 R. S. 1881. Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 296 , 76 N. E. 1060 ; Illinois Cent. R. Co. v. Cheek (1899), 152 Ind. 663, 667 , 53 N. E. 641 ; Grass v. Fort Wayne, etc., Traction Co. (1908), 42 Ind. App. 395 , 81 N. E. 514 ; Kelsay v. Chicago, etc., Railroad (1808), 41 Ind. App. 128, 133 , 81 N. E. 522 .

2. Appellant demurred to each paragraph of appellee’s complaint and assigns the overruling of these demurrers as error. But in the points in its brief on these alleged errors appellant’s counsel content themselves with the general statement addressed to each paragraph that it “does not state facts sufficient to constitute a cause of action”. No defect in the complaint is pointed out and under the rules prevailing no question of the sufficiency of either paragraph is presented. Wellington v. Reynolds (1912), 177 Ind. 49 , 97 N. E. 155 and cases there cited; Illinois Surety Co. v. Frankfort Heating Co. (1912), 178 Ind. 208 , 97 N. E. 158 .

3. *145 4.

*144 The next error assigned is the overruling of appellant’s motion for a new trial. Under this assignment of error an attempt is made to question the correctness of the action of the trial court in overruling appellant’s motion to require the jury to make more certain answers to a number of the interrogatories which had been submitted to it. But that part of appellant’s brief devoted to propositions or points to show the error relied upon under the fifth clause of Rule 22, contains nothing but the bare assertion of the error. This is not sufficient to present any question. Wellington v. Reynolds, supra; Illinois Surety Co. v. Frankfort Heating Co., supra. This *145 rule of practice must also be applied to the points in appellant’s brief attempting to challenge the sufficiency of the evidence to sustain the verdict. Moreover no question of the sufficiency of the evidence is presented by appellant for another reason. Appellant’s brief does not contain a condensed recital of the evidence in narrative form as required by the fifth clause of Rule 22. The evidence is not set out by condensed recital in narrative! form but counsel for appellant have contented themselves with setting out in their brief what they conclude to be the facts established by the evidence stated in chronological order. This does not comply with the rule. Huffman v. Thompson (1912), 177 Ind. 366 , 98 N. E. 113 ; Webster v. Bligh (1912), 50 Ind. App. 56 , 98 N. E. 73 .

5. Error in overruling appellant’s motion for a new trial is sought to be shown based upon causes stated therein arising upon the admission and rejection of certain testimony of a number of witnesses. Appellant’s brief gives us no information where to find, in a very voluminous record, these rulings. It is not made to appear in the brief that objections or offers were made or exceptions taken to the court’s rulings. This does not compel our consideration of these questions, but is deemed a waiver of them by appellant. See Huber Mfg. Co. v. Blessing (1912), 51 Ind. App. 89 , 99 N. E. 132, 134 , and cases there cited; Inland Steel Co. v. Smith (1907), 168 Ind. 245, 252 , 80 N. E. 538 .

6. Appellant’s motion for a new trial bases causes on the court’s refusal to give certain instructions tendered by it. It also bases other causes on the giving of instructions requested by appellee and by the court on its own motion. The instructions are not brought into the record by bill of exceptions and there has been an utter failure to bring them in, either under §560 Burns 1908, §535 R. S. 1881, or §561 Burns 1908, Acts 1907 p. 652. *146 (See Retsek v. Harbart [1911], 176 Ind. 441 , 96 N. E. 386 ). No question is therefore presented involving any instruction, either given or refused.

7. The final error relied upon for reversal is the overruling of appellant’s motion for judgment on the answers to interrogatories notwithstanding the general verdict. The only point stated in appellant’s brief on this question is a bare reiteration of the assignment of error. No reason for concluding that the court erred in this ruling is given. No conflict between .any answer and the general verdict is pointed out. Under the rules which have been before referred to in this opinion the brief does not invoke a determination of the question.

Error in the trial not being shown the judgment is affirmed.

Note.—Reported in 100 N. E. 465 . See, also, under (1) 29 Cyc. 646; (2) 2 Cyc. 1014; (3, 7) 2 Cyc. 1016; (4, 5) 2 Cyc. 1015; (6) 3 Cyc. 170.