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Page Village of South Jacksonville v. Illinois Webster v. Toulon Tp. High School Dist. Power & Light Corporation (111.). 144 No. 4 (Ill.).

118 Vittorio v. St. Regis Paper Co. (N. Y.).. 913 Webster Hotel Co., Williams v. (Ill.). 622 Voellinger v. Kirchner (Ill.).

638 Weirton Steel Co., National Can Co. v. Vogel, Dimick v. (Mass.) 462 (Ill.)

389 Vogel, Kenyon v. (Mass.) 462 Wells, Smith v. (Mass.).

50 Vrljich, Shideler v. (Ind.).

881 | Western Electric Co., Board of Com'rs of Vrooman, Bunnell v., two cases (Mass.).. 58 Marion County v. (Ind. App.)...

504 Vulcan Detinning Co. v. St. Clair (111.).. 657 Western Life Indemnity Co. v. Bartlett

(Ind. App.)..

786 Wabash R. Co., People v. (I11.)....

642 Westfield Stock Farm Co., Eikenberry v. Wabash R. Co., People v. (Ill.).

724
(Ind. App.):

924 Wabash R. Co., People v. (Ill.).

730
W. G. Press & Co. v. Fahy (Ill.)

103 Wabash R. Co., People v. (Ill.).

177
733
Whitaker v. Scherrer (Ill.)

51 Wabash R. Co., People v. (Ill.).

Whitin, Flaherty, v. (Mass.)

174 Wahl, Southern R. Co. v. (Ind. App.)

Wieland, People v. (Ill.).
523
Wilcox, Goar v. (Ind. Anp.).

924 Walczak, People v. (Ill.)..

660 Williams, State v. (Ohio). Waldeck, State v. (Ind.).

497 | Williams v. Webster Hotel Co. (Ill.). 622 Walker, Schuholz v. (Ohio) 537 | Wilson v. Daniels (Mass.).

469 Wallace v. Odell (I11.). 610 | Windmiller, Peters v. (111.)

599 Walrath, King v. (III.). 94 Winter v. State (Ind.)

567 Walton, People v. (Ill.) 182 Worden v. Rayburn (Ill.)

101 Warner, Brink v. (Ind. App.) 318 Wulff, People v. (Ill.),

108 Washington Nat. Bank, Ogdon v. (Ind. Wyman, Graustein v. (Mass.)

450 App.)

514 Watson v. Sterling, three cases (Mass.). 40 Zander, Harges v. (I11.).

363 W. C. McBride, Inc., v. Murphy (Ohio).. 855 Zendel, Miller y. (Ind. App.)

926

734

542

See End of Index for Tables of Northeastern Cases in State Reports

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THE

NORTHEASTERN REPORTER

VOLUME

145

the affidavit,” and the fact that the offense CHALABAIS V. STATE. (No. 24663.) was not accurately described by the other

words used in the verdict was not material. (Supreme Court of Indiana. Oct. 15, 1924.) For, while "felonious assault” might not nec1. Homicide Om 313(3)–Verdict held sufficient, essarily mean an assault with intent to comin prosecution for attempt to commit violent mit a felony, we think that, when considered injury on named person by shooting at him in connection with the offense charged, the with intent to kill.

use of that expression does not make the In prosecution for an attempt to commit a meaning of the verdict doubtful. violent injury on named person by shooting at The motion for a new trial challenged the him with the intent to murder him, verdict find-sufficiency of the evidence. There was eviing defendant "guilty of felonious assault on dence that, with a man employed to drive W., as charged in the affidavit,held sufficient. back the car, appellant and two others drove 2. Homicide 257(1)-Evidence held insuffi- from their home in Gary, Ind., to a farm cient to sustain conviction of attempt to some miles away in another county, where a commit violent injury with intent to kill. still in a "bank cellar" or "cave" near the

Evidence held insufficient to sustain con- farmhouse and quantities of “mash," with viction of an attempt to commit a violent in other facts, indicated that somebody had jury on named person by shooting at him with been making whisky; they took a number of the intent to murder him.

jugs along, which had contained “white

mule" whisky; the house was about 30 rods Appeal from Circuit Court, Porter County: back from the highway and the car was H. H. Loring, Judge.

stopped out in the road, where appellant and George Chalabais was convicted of an at- two companions got out, with the jugs and tempt to commit a violent injury on named some gasoline, and the driver took the car person by shooting at him with the intent to back to Gary; that the three men with the murder him, and he appeals. Reversed, with jugs walked down to a fence of two or three directions.

loose wires near the house, and one of them Sheehan, Lyddick & Sharavsky, of Gary, started to crawl between the wires, when the for appellant.

sheriff and one of his deputies ran from beU. S. Lesh, Atty. Gen., and Mrs. Edward hind an outbuilding and seized him; that the Franklin White, Deputy Atty. Gen., for the other two men dropped their jugs and ran State.

back toward the highway, followed by another

deputy sheriff, William B. Forney; the fence EWBANK, J. [1] The charge against ap- being between him and them; that the two pellant was that, on the 21st day of August, men turned and ran into the standing corn, in the county of Porter and state of Indiana, when Forney crawled through the fence, shot he unlawfully and feloniously attempted to at them, and chased them across the corn commit a violent injury upon the person of rows until he almost caught one of them; William B. Forney, which injury he had the that this man fired a shot almost in Forpresent ability to commit, by unlawfully and ney's face, and the flash lighted up his own feloniously shooting at the said William B. face so that Forney saw it plainly, and tesForney with a certain gun loaded with gun- tified that he was one of appellant's companpowder and leaden shot, with intent thereby ions named Zitko; that this shot struck Forto kill and murder him. To this charge heney in the top of the head and made a slight pleaded not guilty. The jury found appel-wound; that two shots were fired, besides lant "guilty of felonious assault on William the one fired by Forney; that the first shot B. Forney, as charged in the affidavit.” Ap-was fired by somebody 10 or 12 feet away pellant's motion for a venire de novo was from Forney, in the corn, but no witness properly overruled. This amounted to a saw who fired it, and afterward Forney ran finding of "guilty

as charged in about 135 feet before he caught up with ZitFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-1

one.

ko, when the last shot was fired. Defendant 2. Pleading em 18-Unnecessary to show why ran through the corn to the creek and swam speed of 60 miles per hour was negligent across, after which he walked to the next when speed merely incidental. highway and was picked up by a passing au In an action for death of a fireman killed tomobile, and rode back to Gary

in a head-on collision, it was unnecessary for It appeared that appellant was afterward complaint to state facts showing why speed of convicted of violating the Prohibition Law, 60 miles an hour was negligent, where speed

was merely incidental to cause of action. because of what he did that night, and that Zitko pleaded guilty to the charge of shoot- 3. Appeal and error 1039(8) Judgment not ing at Forney, besides being positively iden reversed for overruling of motion to make tified by Forney as the one who shot him. Immaterial averment more specific. A witness stated, on cross-examination, that Overruling a motion to make an immaterial he sold appellant a gun; neither the time averment more specific is not cause for reverwhen it was sold nor the kind of gun being

sal. stated. And the man who drove the car tes- 4. Master and servant om 204(3)-Risk of intified that, at some time not stated, before jury by fellow servant not assumed under fedthat night, he had seen a gun in a pocket of oral act. appellant's car, but did not see any that Plaintiff's decedent, killed in operation of an night. But nobody testified that appellant interstate train, did not assume risk of injury fired a shot, or that he was at the place from by negligence of fellow servants, since Aet which a shot was fired, or that he had a gun April 22, 1908, U. 8. Comp. St. ģ 8657, was of any kind with which he could have fired

applicable. Defendant testified that he had noth- 5. Master and servant Om 180(1)-Fellow ing with which to shoot, and that he was servant doctrine abrogated by federal act.' running away through the corn, some dis U. S. Comp. St. $ 8657, making an intertance ahead of Zitko, when he heard the state railroad carrier liable to an employé for shots, and that he kept on running.

injuries while engaged in interstate commerce, [2] That appellant was guilty of violating abrogates fellow servant rule at common law. the law may be granted, and it appeared that 6. Discovery Omw 63—Interrogatories held relehe had been convicted and had paid a fine vant and proper. for a misdemeanor. But the question is In action for death of railway fireman, inwhether or not this evidence was sufficient to terrogatories propounded to defendant as to prove him guilty of the felony for which he whether it issued and delivered a certain order, was on trial. We think not. The mere facts whether it was in the words therein set out, that he ran into the corn with another man

and whether it gave one train the right of way

over another, held to relate to matters in iswho was shown to have been armed and to

sue, and not subject to be stricken out as have shot at Forney, and that some uniden hypothetical, calling for copy of instrument, or tified person in the corn fired a shot which asking defendant to determine the law. "missed" Forney, with proof that at some unnamed time appellant had purchased a

7. Executors and administrators Om 449-Proof

of administrator's appointment held uoneo"gun," and that at some unnamed time be

essary when not denied fore that night there was a "gun" in his car, were not sufficient to support an inference ministrator was necessary, in view of Burns'

No proof of plaintiff's appointment as adthat he shot at Forney with the felonious in- Ann. St. 1914, § 371, in action to enforce liatent to kill and murder him.

bility created by a federal statute where comThe judgment is reversed, with directions plaint alleged appointment by a court of juto sustain appellant's motion for a new trial risdiction, and authority and capacity in which The clerk will issue the proper order for he sued was not denied by pleading under oath. the return of the prisoner to the custody of 8. Death 99(4)-$30,000 for death of brakethe sheriff of Porter county for attendance man held not excessive. upon such a new trial.

Damages of $30,000 for death of a brakeman 35 years old, who had been earning from $100 to $130 per month, and who left a widow of

his own age and five children, held not excessive. BALTIMORE & 0. S. W. R. CO. v. BERDON.* 9. Discovery C79—Statute authorizes use of (No. 24002.)

answers to interrogatories as evidence at

trial. (Supreme Court of Indiana. Oct. 15, 1924.)

Burns' Ann. St. 1914, $ 365 (Rev. St. 1881, 1. Pleading 367 (4)-Allegation as to duty $ 359), expressly authorizes use of answers to of trainmen sufficiently specific.

interrogatories as evidence at trial. Where complaint alleged that railroad had 10. Evidence w34, 46—Act of Congress, Presonly a single track, and that trainmen were ident's proclamation, and orders of Director given order giving another train the right of General held matters of judicial notice. way, allegation that it was their “duty” to

Act Cong. Aug. 29, 1916, U. S. Comp. St. $ hold their train until the other arrived was not 1974a, the President's proclamation taking over indefinite or uncertain so as to make it subject railroads, the orders of Director General proto motion to make it more specific.

| viding that roads should have all income, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Certiorari denied 45 S. Ct. 225, 69 L. Ed.

(145 N.E.) pay all liabilities prior to January 1, 1918, , mour, Ind., and in the line of his employ. and contracts between the United States and ment was working as a servant of defendthe railroads were matters of judicial notice. ant in the operation of said train from Cin11. Railroads 5/2, New, vol. 6A Key.No. cinnati westward into Indiana, on its way

Series Action held maintainable against rail- between said points; that said train was be road under federal control.

ing run by defendant as its second No. 23, An action for death of a fireman engaged in pursuant to an order which had been made, interstate commerce on December 29, 1917, published and promulgated by defendant, could be maintained against railroad, in view of that gave said train the right of way from U.S. Comp. St. 1974a, the President's procla- Milan to North Vernon, stations on said rail. mation taking over the railroads, orders of Di- road in the state of Indiana, as against rector General providing that roads should pay trains numbered 2 and 68 and 46, respectiveall liabilities prior to January 1, 1918, and con

ly; that there was only a single track on tracts between the United States and the rail.

said railroad between the stations named; roads.

that defendant's servants in charge of and 12. Trial m39-Defendant's offer to read operating the east-bound train No. 2 receivPresident's proclamation assuming control of ed said order; and “that under and pursurailroads held properly refused.

ant to said order it became the duty of said Defendant's offer to read President's procla- employés, servants and agents running and mation taking over roads during federal con

operating said train No. 2 to hold said train trol, as evidence, was properly refused, since at said city of North Vernon until said train such proclamation has effect of law, and court

second No. 23 had reached the city of North is required to interpret all matters of law and declare them by its instructions for guidance Vernon as aforesaid, and at said point said of jury.

trains were scheduled and notified by rea13. Evidence 28–Law in force within juris- that defendant's servants in charge of train

son of said order to pass each other," but diction is a matter of judicial notice. The laws in force within a jurisdiction is a

No. 2 negligently failed to obey said order,

and negligently ran that train toward the matter of judicial notice, and need not be pleaded or proved.

east from North Vernon on the same track on which the second No. 23 was approaching

from the east, "and negligently ran said Appeal from Circuit Court, Scott County: train No. 2 east as aforesaid at a high and John R. Carney, Judge.

dangerous rate of speed, to wit 60 miles an Action by Gustav A. Berdon, administra- hour toward and into train second No. 23 tor, against the Baltimore & Ohio South- upon defendant's track” between North Verwestern Railroad Company. Judgment for non and Milan, "and there negligently colplaintiff, and defendant appeals. Affirmed. lided with said train second No. 23,

Superseding former opinion, 143 N. E. 677. and thereby struck, injured and killed plain

McMullen & McMullen, of Aurora, for ap tiff's decedent upon said train second No. 23 pellant.

in his position up said locomotive and Thomas M. Honan, of Seymour, and Beck. while performing his duties as said fireman ett & Beckett, of Indianapolis, for appellee. upon said locomotive in the line of his em

ployment"; that said decedent left a wife EWBANK, C. J. Appellee recovered a ver- and five minor children who, because of cer. dict and judgment against appellant for $30,- tain facts stated, were thereby damaged in 000 for the death of his decedent, Joseph F. the sum of $50,000. Hornung. Overruling appellant's motion to (1) Appellant's motion to make the commake the complaint more specific, overrul- plaint more specific by explaining the use of ing its demurrer to the complaint, and over

the word “duty" as applied to the servauts ruling its motion for a new trial are assign- operating train No. 2 being required to hold ed as error.

the train at North Vernon was properly overThe complaint alleged, in substance, that ruled. All of the facts which imposed that the plaintiff was duly appointed as adminis- duty, including the alleged facts that there trator of the estate of his decedent by the was only a single track from that city eastcircuit court of the county in which said de- ward to Milan, and that they had been giy. cedent lived at the time of his death, and

en an order that train second No. 23 from had qualified as such administrator; that the other direction had the right of way over defendant was a corporation engaged in op- train No. 2, were fully stated in the comerating a railroad extending across Ohio, plaint, and the further charge that by reaIndiana, and certain other states, and engag

son of such facts it was the duty of those ed in interstate commerce as a common car

in charge of the east-bound train to hold rier for hire; that plaintiff's decedent was

it at North Vernon until the west-bound in the employ of defendant as a fireman on train arrived there was not indefinite nor one of defendant's locomotives in an inter- uncertain. Pittsburgh, etc., R. Co. v. Lighstate train operated by defendant on said theiser, 163 Ind. 247, 254, 71 N. E. 218, 660; railroad between Cincinnati, Ohio, and Sey- Chicago, etc., R. Co. v. Hamerick, 50 Ind.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen

App. 425, 434, 96 N. E. 649; Wellington v. to sue not having been denied by a pleading Reynolds, 177 Ind. 49, 52, 97 N. E. 155. under oath, no proof of those matters was

[2, 3] Neither was it error to overrule the necessary at the trial. Section 371, Burns' motion to require that the complaint should | 1914 (section 365, R. S. 1881). state facts showing why 60 miles an hour We perceive no reason why this rule of was dangerous and negligent. The grava evidence should not govern an action in a men of the alleged cause of action was run- state court to enforce a liability created, in ning an east-bound train along the single part, by a federal statute. The defendant track on which a west-bound train was ap- had notice of the capacity in which plaintiff proaching that had the right of way and was suing from the time the complaint was thereby running it against plaintiff's dece- filed, and knew that it would conclusively dent and killing him, and the speed at which admit his capacity to sue as administrator if it was operated was merely incidental. it should fail to deny such capacity under Overruling a motion to make an immaterial oath. The evidence was sufficient in this averment more specific is not cause for re- particular. versing the judgment. Cincinnati, etc., R. [8] There was evidence that the deceased Co. v. Little, 190 Ind. 662, 131 N. E. 762; was 35 years old and had a life expectancy Tecumseh, etc., Co. v. Buck (Ind. Sup.) 135 of 31.78 years, that he left a widow of his N. E. 481.

own age, and children aged 3, 8, 12, and 14, [4, 5] The complaint charged that plain- and 15 years, respectively; that he was tiff's decedent was killed in the performance strong, healthy, sober, industrious, of good of service in the operation of an interstate habits, and kind to his family; that he had train as a servant of defendant in the con- worked as a brakeman 6 or 7 years, and was duct of its business as a railroad carrier en receiving from $100 to $130 per month, with gaged in interstate commerce. Under such some extra at times, and was farming ten circumstances the act of Congress (Act April acres on which he produced vegetables and 22, 1908, U. S. Comp. Stat. § 8657) applies, hogs, and from which he sold $200 worth per and he did not assume the risk of injury by year. We cannot say that the amount of reason of the ne ligence of fellow servants. damages awarded was so obviously a result The statute makes an interstate railroad of prejudice, partiality, or other improper carrier liable in damages to an employé motive, or was so obviously a result of the while engaged in interstate commerce for in consideration by the jury of an improper juries or death resulting in whole or in part element that a court of appeals can know from negligence of any "officers, agents or they are excessive. City of Indianapolis v. employés of such carrier," and abrogates the Stokes, 182 Ind. 31, 35, 105 N. E. 477; Pittsfellow servant rule at common law. Mondou burgh, etc., R. Co. v. Smith, 190 Ind. 656, v. New York, etc., R. Co., 223 U. S. 1, 32 Sup. 131 N. E. 516. Ct. 169, 175, 38 L. R. A. (N. S.) 44.

[9] The statute expressly authorized the [6] Interrogatories 4, 5, and 6 inquired use of the answers to interrogatories as eviwhether or not defendant issued and deliver dence at the trial. Section 365, Burns' 1914 ed order No. 142, on the date of the accident, (section 359, R. S. 1881); Combs v. Union whether or not it was in certain words, as Trust Co., 146 Ind. 688, 694, 695, 46 N. E. set out, and whether or not it gave train 16. second No. 23 the right of way over train No. (10, 11] There being an express admission 2 between Milan and North Vernon on that of defendant, under oath, by its answers to day. Defendant's motion to strike them out, the interrogatories, that plaintiff's decedent for the alleged reasons that they were irrel- was in the employ of defendant as fireman evant and not connected with the pleadings, on defendant's west-bound train second No. and that they asked hypothetical questions, 23, on December 29, 1917, the day of the ac

asked for a copy of an instrument, and asked cident, that defendant gave the order refer. · defendant to determine the law on the facts red to, and that said train collided with de

stated, was overruled, and appellant answer- fendant's train No. 2 on defendant's railroad ed each interrogatory in the affirmative. a mile and a half east of North Vernon, the This ruling was not erroneous. It did not following facts were matters of judicial appear from the questions or the answers

knowledge: thereto that the order was in writing, and That under the act of August 29, 1916 (U. S. whether or not the abbreviations used ex- Comp. Stat. 8 1974a) “the President, in time of pressed the meaning that one train had the war, is empowered

to take possesexclusive right to use the single track until sion and assume control of any system or sysit should have passed over it was matter of tems of transportation, or any part thereof," fact. The facts inquired about were in is. etc.; that after war with Germany and Austriasue, and were material.

Hungary had been declared, the Presiden is: [7] The complaint having alleged that which declared that he did "hereby take posses

sued a proclamation on December 26, 1917, plaintiff was the administrator of his de sion and assume control at 12 o'clock, noon, on cedent's estate, appointed by a court that the 28th day of December, 1917, of each and had jurisdiction, and the character and ca every system of transportation and the appurpacity in which he sued and his authority tenances thereof located wholly or in part with

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