The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-08-15

a AaSHAiiCa fa~N
identification and p~recludes their being con-
fused with anything having a different
Identity or performing a alIerent once.
Not only does the difference between
a fact and a conclusion force the convic-
ton that the Legislature sought to take
away the province OF the jury TO draw In
flow from the limitations found In the
method OF procedure. The jury has no
right to add TO or take from the interroga-
tories submitted by the court or TO make
any suggestions, however relevant or vital
to the case. The jury shall answer each
of the in-terrogatories submitted to them
This is a radical departure from the former
act Under the former act while counsel
might submit forms OF speciaI verdict the
jury was not bound TO adopt any form ten
dered. but was unrestricted In the exercise
OF its power to make its own verdict as
it might. see fit. Under the former act the
jury took the facts from the evidence and
the law from the court. or If the jury an
swered interrogatories 1t returned there
with a general verdict: under the present
act the jury has nothing to do with. the
law and ii takes the facts TO be found from
the court
THE construction Of this act which /
have undertaken to impress upon the court
as expressing the true intent OF the trainers
of this bill. and consequently of the Legis-
lature, is, ii seems to me. conclusively es-
tablished by the history Of the bill. L shall
endeavor to show that the rule in the
Cranes case Cincinnati, etc. r. Co. Va.
Cranes, 1876 Ind. 39), bore hard on corpora
ton defendants who preferred to intrust
their cases to a single judge rather than TO
a jury; that the Cranes case established
the rule that conclusions upon the facts
were to be drawn by the jury and not by
the judge; that any conclusion not drawn
solely from the law was a conclusion TO
injury cases the issue OF negligence WAS
for the jury and not for the court. l shall
endeavor to show that prior to the Cranes
case 1t was the rule that the court and
not the jury should determine the ques-
ton of negligence: that in all cases prior
to that of CRANES this court disregarded
fna 0nInI0n nf tho lurx- zrhQn axnraCCnd IN
negligence cases. the court holding that all
conclusions were to be drawn by the court
that the existence or nonexistence OF negli-
gence was not and could not he a fact
within the law defining the divisions of n
special verdict and the sole province OF tn
jury was to find the facts.
Il speak of the Cranes case as distir-
guished from all others because it appea- s
to be the watershed which turned the cur-.
rent of the stream from it's old cEannel
into the new. There were cases prior 10
that of Cranes which held as the Cranes
case holds, but they were exceptional and
cases holding the other way. Thus in Bal
timore etc, r. Co. va. Walbom, 127 InG..
AZ. this court quoted with approval the
case, cited supra, and held that il was the
duty or the jury and not the court to set
tie the question Of negligence. So I'm Mann
VS.. Belt r. Co., 12S Ind, at page al, the
court said:
IF such a state of facts exists as that
one sensible, impartial man would infer
~ N4At bht hOt OCCI dStu nix
that negligence existed while another man
equally sensible and equally impartial
would infer that proper care had been
used and that there was no negligence. ii
Is said to be the highest effort of the Law
10 obtain the judgment Of twelve men OF
men of Earning snG m ep% of little eedmSsistnS
men whose learning consists only of what
they have themselves seen and heard. the
merchant, mechanic. farmer and laborer.
as to whether negligence does. or does not
exist in the given case. Such Judgment is
supposed TO be more valuable In such cases
tnan the Judgment of a single Judge
In other words, our system of iurjs-
prudence. In so far as il defines the de-
gree or care we are to exercise toward one
another, Is practical rather than ideal. and
no man Is obliged to live or to act i'm a
manner which is above his capacity SO long
as ms capacity is not beneath the average
or the community. Thus again we have a
government of the people. by the people,
and for the people. Erskine happily de-
scrlbeu the situation Of the jury when he
i JURY THE BANNER OF FREEDOM.
1T is of the nature of everything that
is great and useful. both In the animate
and inanimate world, to be wild and ir-
regular. and we must be content to take
them with the alloys which belong to
them or live without them. Liberty
herself, the last and best gift of God to
His creatures, must be taken just as
she is. You might pare her down into
bashful regularity, shape her into u per-
iect model OF severe. scrupulous law; but
she would then be liberty no longer: and
you must be content TO die under the lash
OF this memorable justice which you have
exchanged for the banner of freedom
1t is also to be noted that during all the
time this court was disregarding 'conclu-
slons' In special verdicts, 1t was without
that IL was the sole province of the Jury
10 oraw 1nferences. ON a demurrer to the
evidence. everything will be taken against
the party demurring which the evidence
tends TO prove, including every fair infer
ence to be drawn from the evidence
Eagan VS.. Downing % Ind, 90.
BY a demurrer to the evidence. all the
facts of which there is any evidence are
admitted and all conclusions which can
fairy and logically be deduced from those
facts, Newhouse VS.. Clark. 60 Ind. 172.
The court, on TING demurrer to the evil
dence. was bound 70 take as true all the
and such differences from them as the Jury
might have fairly drawn. though the Jury
might not have drawn such differences
OHIO. ETC., Il. Co. VS.. Collarn, 30 Ind. PSI.
I'm this case this court quotes with ap-
prevail for the first time the observations
OF Justice Hunt in the case of RAILROAD Co.
VS.. Stout, supra.)
In other words, it seems to us that In
passing. upon and deciding a demurrer to
the evidence, the court should consider not
only the evidence which is embodied in the
demurrer. but also all such fair and rea-
sonabie differences as the triers OF the facts
niSie hasc iawiuhy ulS"H from Sucn EVIL
dence.' Trirnble ct al. VS.. Pollock, admin
i%strator, Il Ind. 576.
II the foregoing cases prove anything
1t is that the jurors have the right 10 think.
to reason. to apply their experiences and
to draw conclusions. Nor should we con-
fuse the province of the jury with the pro-
cedure OF the jury. The province of the
jury is a guaranteed right which remains
fixed. and the same whether a special ver-
dict or a general verdict il to be returned.
NO lawyer ever ventured the assumption
under the former law that he could. by
calling for u special verdict. take away
from the jury any part of his adversary's
case, which would have been the result at
tanned If the province of the Jury had been
dependent upon the form OF verdict ii was
to return.
merely said to the jury in directing a spe-
cial verdict under the Old law: Gentlemen.
you VIII furnish to the court in detail your
reasons for your verdict in this case end
it was sometimes said in justification 81
special verdicts under the former law that
by them the court would be abe to dis
Germ If prejudice or undue influence had
entered into the jury's deliberations. And
it was said that this feature was a car
dinal virtue of the law. a virtue which. by
the way, is not within the range OF the
present law.
THE rule of construction applied 20 spe-
cial verdicts and answers TO HETEROGENEOUS
which was abrogated by the Cranes casa,
last appears, as my research discioses, I'm
the case Of Louisville. etc. r. Co. ys.
Schmidt. 13i Ind. &c. in which the court
weighed the evidence in order to determine
the question of negligence.
CRANES CASE NEVER QUESTIONED.
"Since the Cranes case was decided II