The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-01-09
THE RECORD OF THE COURTS
Supreme Court-Jan. 8.
Hon. Geo. v. Howk. Chief Justice


STOCK KILLED BY NEUTRALITY-SUSPICIOUS..
1925. The indianapolis & Vineennes Railroad
Company VS.. Lafayette Sims. Morgan c. @.
Elliott J.-In Justices court a complaint
Tor killing stock by railroad is not bad for fail
ure to charge that the road was not fenced at
the place where the stock entered. (23 Ind.
no. Where the complaint charges that on a
certain day certain named animals were killed
upon a railway track only single cause of action
Is shown 40 Ind, 430: 30 i'd, 325 and it is error
to permit evidence to be offered of stock killed
at different time Judgment reversed
MISUNDERSTANDING sTocK-CoNfpLA1NTs
l0506. Louisville, New Albany & Chicago
Railway Company vs. Abraham Harrington.
Carroll c. c..
Niblack, J.-In complaint against railroad
Tor Killing stock, an averment that the defend
ant ran against and over the said mare of the
plaintiff, and killed and destroyed the same
shows by reasonable inference that the mare was
killed by some vehicle or other machinery of the
defendant, and is sufficient after verdict, and on
objection made for the first time in this court.
~ Ind, l15; % i'd, 2I9 81 i'd, 1923. Judgment
affirmed.
CRIMINAL EvIDENcE-PRAcTIcE.
n,274. Thomas Lockhart We. The State Wash
ington c. G.
collars, J.-Where, in criminal case, an I'M
willing witness testified. in answer to questions
propounded by the court, that she had been
hired by the mother Of the defendant to stay
away from the trial and afterwards stated that
the defendant was not present and had nothing
to do with such hiring. it would have been pro
per, on motion, to strike out her testimony as to
the relationship of the mother and son; but in
the absence of such motion the error is not
available in this court Affidavits attacking and
sustaining the competency of a juror do not be
come part of the record unless made so by bill
of exceptions, although made part of motion
for new trial Judgment affirmed
PARTIEs-DEMURRER-P PARTIAL FORECLOSURE.
10,940. Ebert H. Shirk vs. Flora Andrews.
Huntington c. G..
Elliott, 1.-The rule that demurrer to an an
swer will search the record does not apply where
the question is as to parties, but only where the
merits OF the action are involved. The question
whether the plaintiff is the real party
IN interest must be Wv, raised by demur-
of an equity of redemption is not made "a party
to foreclosure suit a subsequent suit may be
brought to compel him to redeem and to bar his
equity of redemption. y Jones Mont, sec. 1,679,)
Judgment reversed.
RAILROADS WITHOUT TICKET-CoN-
TRIBUToRY NEGLIGENCE.
1924. George W. Stoner vs. The Pennsyl-
vania Company. Clark c. G. '"
Hammond, J.-Appellant, a minor, alleged in
his complaint that while attempting to board
passenger train of appellees then standing still.
the train was suddenly jerked, and started
throwing the appellant under the wheels, etc
Proper allegations are made of the negligence of
appellee's servants and that the plaintiff was
without fatlIt 1t was also alleged that plaintiff
had tried to obtain ticket but was unable to do
50 because the eompany's office was closed
Answer, that there was platform at
defendants depot for the use of passen-
gers in getting on and off trains and that
plaintiff attempted to board the train at
point two yards from the platform, and that
those in charge of the train had no notice that
plaintiff would attempt to board the train at that
place. This answer does not alege facts from
which. us a matter of law, contributory negli-
gence on plaintiffs part must be inferred. Neg
hgence is usually a mixed question of law and
fact; fact to be found by the jury under the in
structions of the court The court may not de-
clare an act to be negligence unless it is such
that all reasonable men would be likely
to draw an inference of negligence from it.
pierce on Railroads, 314 1t is not alleged that
the train stopped at the depot platform, or that
the company was not in the habit of receiving
and diseharging passengers where appellant at
tempted to board as well as at the platform 49
N, Y, 673; 40 i'd, 145.) The failure to obtain
ticket did not prevent appellant from becoming
"a passenger (3S Ind, 116; 81 i'd, 566.) The
answer is fatally defective in that it does
not charge any carelessness on the part of appel
liant, or that his act in boarding the train where
he did in any way contributed to his injury, (27
Ind, So Judgment reversed