on any box car and pass under the bridge tion houses upon the line of the Central without striking it; that the plaintiff had Railway, and it would be preposterous in been in the employ of the defendant as us to say, or ask a jury to say, that a brakeman over that part of the road where brakeman engaging in the service of the the bridge was from the 5th October to the company must be held to know whether 4th of November, 1881, and that during or not there may be one among them that time he passed with his train under whose roof or a wning so projects over the said bridge from 8 to 10 times in the day- line of road that a brakeman on a freight time and that many times in the night. train, in the performance of his duties, He was again employed as brakeman over would be liable to be swept from the train that part of the road on the 11th or 12th by a collision with it." "He was reof January, 1882, and he was injured on quired," said this court, “to observe orthe night of the 13th of that month, and dinary care for his own safety, but he was from his first employment to the time of not required to go over the road upon a his injury he had passed under the bridge tour of inspection, looking for defective from 17 to 20 times, one-half of the num- bridges or faulty track, before engaging in ber being in the night; and yet it was the service. This, we may add, was a held in that case that these facts did not duty which the law devolved upon the destroy or overthrow the allegation and company, and an employe has a right to the finding that he was ignorant of the presume that the company had done its dangerous character of the bridge, though duty in that respect, and, if such inspecit was found by the jury in answer to in- tion revealed any defective bridge or terrogatories that the danger was an open bridges liable to endanger the lives or limbs and obvious one in the daytime, but not of their employes operating the road, that at night. And, quoting from the first case the company would give them timely above, this court said in the latter case warning thereof. It is averred that the that "it seems to us that a railroad com- bridge had been negligently maintained pany is, and ought to be, required to con- by appellant for five years immediately struct and maintain its roadway and appreceding the injury. Though there is no pendages, and its overhead structures, in such a manner and condition that its employe or servant can do and perform all the labors and duties required of him with reasonable safety; and, applying the language from Railroad Co. v. Love, 10 Ind. 554, said: "If a defect existed in the road which was known to the company, but which it was impossible for them to remove or remedy, and in consequence thereof the road was unsafe, but not impassable, and yet they should place an employe upon the road, and suffer him, in ignorance of said defect, to attempt to operate it, and injury should thereby result to him, certainly there would be a lia- | bility." To the same effect are Pennsylvania Co. v. Brush, 130 Ind. 347, 28 N. E. Rep. 615; Nordyke & Marmon Co. v. Van Sant, 99 Ind. 188; Car Co. v. Parker, 100 Ind. 181; Krueger v. Railway Co., 111 Ind. 51, 11 N. E. Rep. 957; Bradbury v. Goodwin, 108 Ind. 286, 9 N. E. Rep. 302; Railway Co. v. McCormick, 74 Ind. 440. And applying to that case the principles laid down by the supreme court of Illinois in Railroad Co. v. Welch, 52 Ill. 183, this court, in Railway Co. v. Wright, supra, said: "The railroad track at Mendota was about eighteen inches from the edge of an awning which projected from the station house; so that, when a freight car stood upon the track, the inside edge of the car was about even with the outer edge of the awning. The awning was about eighteen inches higher than the car. There being a signal for brakes, the plaintiff in the case, a brakeman, ran up on the ladder on the side of the car, and before reaching the roof was struck by the awning and injured. It was insisted in behalf of the railway company that there could be no recovery, for the reason that the brakeman bad assumed the risks incident to the service, and had an opportunity to know of the danger from the awning. In answer to that contention that court said: "There are many freight depots and sta allegation charging the company with knowledge of the dangerous character of the bridge, yet in the able brief of the distinguished counsel for appellant no objection to the sufficiency of the complaint is made on account of that omission, for the good reason, we presume, that they thought, as we think, that such objection could not be successfully made. It is true, one of the conditions of the liability of the appellant is that it had knowledge of the defect, or that the circumstances were such that it ought to have known of the defect. The circumstances stated in the complaint speak for themselves, and prima facie raise the presumption that the appellant had knowledge of the defect, or, if it did not, that it was guilty of negligence in not acquiring such knowledge. The occurrence of the injury under the circumstances alleged and admitted by the demurrer raises the presumption of negligence on the part of the appellant. Railroad Co. v. Rainbolt, 99 Ind. 551; Shear. & R. Neg. §§ 59, 60; Thomp. Neg. p. 1229, § 3; 16 Amer. & Eng. Enc. Law, 449, 450. See, also, Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234; Railway Co. v. McCartney, 121 Ind. 385, 23 N. E. Rep. 258; George H. Hammond & Co. v. Schweitzer, 112 Ind. 246, 13 N. E. Rep. 869. Appellant, however, could not very well have maintained the bridge for five years previous to the injury without any knowledge of its dangerous character. The court below did not err in overruling the demurrer to the complaint. The next alleged error is the denial of the motion for a new trial. The first point made in support of this assignment is that the evidence shows contributory negligence on the part of appellee. This contention is first met by the appellee's claim that no such question is presented by the record, because, it is contended, the evidence is not in the record. That claim is founded upon the facts disclosed by the return of the clerk to the writ of cer tiorari. It appears from the statements of the clerk and his deputy, embodied in that return, that the formal beginning of the bill of exceptions, designed to incorporate the longhand manuscript of the stenographic report of the oral evidence and its incidents, etc., was found by him soon after the bill purported to have been signed and deposited in the clerk's office, placed in and between the upper cover of said manuscript, and immediately preceding the beginning of the evidence therein, but was not otherwise fastened. Copies of each portion of the original bill of exceptions are embraced in the return. That the next part of the original hill was designed to incorporate the depositions, and the return shows that a space was left therein for depositions, and said depositions were placed inside of said bill of exceptions at said point, but not otherwise fastened; that the other portions of said bill-being those parts designed to incorporate the instructions given and exceptions thereto, and those refused and exceptions thereto-were placed in and between the leaves of said longhand manuscript of said evidence at the close of the evidence, and the same was signed by the trial judge. The members of this court other than the writer are of the opinion that the integrity of the bill of exceptions, as it appears in the transcript, cannot be assailed and destroyed by the statements of the clerk and his deputy, as is attempted in this case; that nothing short of a return to a writ requiring the original bill of exceptions to be certified, and its actual production before this court, can authorize the inquiry sought to be made in this case. And a majority of the court hold that, if the facts stated in the return were established by competent and legal evidence, it would not be sufficient to destroy the integrity of the bill. They regard the practice adopted in this case too loose to be encouraged, if it may not be condemned. The writer differs very widely from the conclusion reached on both points by the other members of the court, and believes, therefore, that the bill of exceptions is invalid. There is another reason why the writer is of opinion the bill of exceptions is invalid, and that is that the bill ought to have been made up by a direction to "here insert" the longhand manuscript and its incidents. That method was held not authorized by the statute by this court in Wagoner v. Wilson, 108 Ind. 210, 8 N. E. Rep. 925, and many cases following that case, but the writer is of opinion those cases were erroneously decided, and is therefore in favor of overruling them; but in this the other members of the court do not concur, therefore Wagoner v. Wilson, supra, is adhered to. The return of the clerk to the certiorari shows that that part of the bill of exceptions designed to incorporate the depositions into the bill reads as follows: "And be it further remembered that upon and immediately following the close of his oral evidence the plaintiff introduced in evidence and read to the jury the following depositions of witnesses taken by him on the 11th day of January, 1889, before Matthew W. Wyeth, a justice of the peace of Porter county, Indiana, which said depositions are as follows;" and no other designation or direction was contained in the bill as to where the depositions were to be inserted, or whether they were to be inserted at all or not, and they were not copied into the bill, but the originals thereof were placed inside of the paper on which that part of the bill was written. It has often been held by this court that, "in order that written instruments shall constitute a part of a bill of exceptions, they must either be copied into it at full length, before it is signed, or appropriately referred to, and the proper place for insertion designated by the words Here insert." Clay v. Clark, 76 Ind. 161; Woolen Factory Co. v. Brodhecker, 130 Ind. 389, 28 N. E. Rep. 185, and 30 N. E. Rep. 528; Endsley v. State, 76 Ind. 467; Irwin v. Smith, 72 Ind. 482; Kesler v. Myers, 41 Ind. 543; Sidener v. Davis, 69 Ind. 336; Insurance Co. v. Johnson, 46 Ind. 315; State v. Railroad Co., 44 Ind. 350; Burdick v. Hunt, 43 Ind. 381; Harman v. State, 22 Ind. 331. We therefore hold that the depositions referred to are not a part of the record, and hence the record shows that the evidence is not all in the record, and therefore we cannot consider the evidence for any purpose. Clay v. Clark, supra; Millikan v. State, 70 Ind. 310; Powers v. Evans, 72 Ind. 23. * * The fourth ground assigned in the motion for a new trial is that the court erred in its refusal to give the jury instructions Nos. 1, 2, 3, and 4. And the fifth ground is that the court erred in giving to the jury instructions Nos. 1, 2, 3, 4, 5, 8, and 9. It has been held by this court that, where a motion for a new trial stated "that the court erred in giving to the jury instructions numbered from one to seventeen, in. clusive, joins all the instructions together in general terms, without separating or pointing out any one or more as erroneous. Such an assignment, like a joint demurrer to separate paragraphs of a pleading, can only be maintained by showing that all the instructions are incorrect. Railway Co. v. McCartney, 121 Ind. 385, 23 N. E. Rep. 258; Wallace v. Bank, 126 Ind. 265, 26 N. E. Rep. 175; Jones v. Layman, 123 Ind. 569, 24 N. E. Rep. 363; Bowman v. Phillips, 47 Ind. 341. Appellant's counsel, in their able brief, have not contended that any of the instructions given, except the 1st, 2d, 3d, and 4th were erroneous; the correctness of the 5th, 6th, 7th, and 8th are not ques. tioned in this court, and we see no objection to them. About the only objection urged to the others is that they were not applicable to the evidence. As the evidence is not all in the record, the presumption is that they were applicable to the evidence actually introduced, and this presumption cannot be overcome until the evidence is in the record, from which it shall appear that the instructions were not applicable thereto. Stevens v. Stevens, 127 Ind. 560, 26 N. E. Rep. 1078. But, if the evidence was all in the record, the invalidity of the assailed instructions could not be determined, because the motion for a new trial, as we have seen, can only prevail in case all of the seven in- | pit. The evidence, without any conflict, structions are bad. The same is true of the instructions refused. The refusals to give numbers 1 and 2 are not assailed in this court as errors. It is sufficient to say that, in the absence of all the evidence, it must be presumed that the whole four were refused, if for no other reason, because they were not applicable to the evidence. But we have examined the first and second, and think they are correct in the abstract, and hence it was not error to overrule the motion for that cause, if any part of such instructions was correctly refused. We have examined all the errors assigned and not waived, and find no available error in the record. The judgment is affirmed. (134 Ind. 343) OHIO & M. RY. CO. v. LEVY. (Supreme Court of Indiana. NEGLIGENCE May 12, 1893.) 1. In an action against a railroad company for personal injuries caused by falling into an unguarded pit adjoining defendant's track, evidence of admissions of defendant's solicitor respecting notice of the existence of the pit, in the absence of evidence that he had authority to make them, is inadmissible, and is not rendered harmless by the fact that there was also circumstantial evidence of notice. McCabe, J., dissenting. 2. In order to prove notice of the existence of the pit it was reversible error to admit in evidence an affidavit made by defendant on a motion for a change of venue, though there was also circumstantial evidence of notice. McCabe, J., dissenting. On rehearing. For former report, see 32 N. E. Rep. 815. Geo. F. Lawrence, Miller & Gavin, M. & R. Maxwell, and Edward Barton, for appellant. Korbly & Ford and A. G. Smith, for appellee. MCCABE, J. A rehearing is asked in this case on the ground that the errors on which the judgment was reversed were harmless. The complaint seeks to recover for personal injuries alleged to have been sustained by appellee in falling into a pit or hole on appellant's right of way where it crosses one of the streets of the city of North Vernon. The erroneous evidence admitted over appellant's objection was the affidavit of appellant, upon which a change of venue of the cause from Jefferson to Jennings county was granted, and the declarations and admissions of the general solicitor of appellant concerning the existence of said hole or pit, tending to show, as it is claimed, that the company had knowledge of its existence. There is no conflict in the evidence as to the existence of the pit; that the appellant kept the way planked up to the pit; and that it had remained there for 20 years; and that, when the plank decayed, at least on one occasion, the company put down new plank in such a manner as that a person traveling over that part of the street at night and in the dark would be liable to be misled by the plank in walking thereon in supposed safety, and step off into the showed that appellee, in company with a companion, was walking over that part of the street where the railroad crossing was, on a dark night, and that, while walking on the plank at the crossing mentioned, which plank extended up to the pit, and that while walking slowly, carefully, and cautiously, and without any knowledge that she was nearing the pit, and being unable from the darkness to see it, she fell into it, and sustained very serious personal injuries, crippling her for life. The evidence, aside from that which was incompetent, fully warranted the finding of the jury, and, wholly disregarding the incompetent evidence, the jury could not have been warranted or justified in finding any other way than for the appellee. It is claimed that the affidavit must have produced a prejudice in the minds of the jury, and therefore influenced their verdict, if not as to which party they would find for, at least in the amount of damages they would assess. The evidence shows without a conflict that the injury was a painful one, and that it permanently lamed the appellee for life. The amount of damages assessed-$1,662-was fully justified by the legal competent evidence. But it is difficult to see how such an affidavit could prejudice the jury. The affidavit was not only incompetent evidence, but the act of the appellee's counsel in offering it, and the court in receiving it, meets with unqualified condemnation. But it is beyond the power of this court to emphasize that condemnation by changing the course of justice. If the illegalevidence is clearly shown not to have harmed the complaining party, it ought not to reverse. The affidavit had not the slightest bearing or relevancy to the question of the right of recovery, or the amount thereof. As the verdict was what it ought to have been under the legitimate evidence, excluding from consideration the affidavit, it appears clearly enough that the error of its admission was harmless; and in such a case it has often been held that such error cannot reverse. Parker v. State, 8 Blackf. 292; Manchester v. Doddridge, 3 Ind. 360; Bush v. Seaton, 4 Ind. 522; Bank v. Adams, 91 Ind. 280; Rhoads v. Jones, 92 Ind. 330; Railroad Co. v. Pierce, 95 Ind. 496; Aufdencamp v. Smith, 96 Ind. 328; Forbing v. Weber, 99 Ind. 588; Sage v. Railroad Co., (Ind. Sup.) 33 N. E. Rep. 771, (decided at this term.) The evidence of the declarations of the general solicitor as to the existence of the pit was inad. missible, because not binding on the company; but the only bearing it could have was to establish knowledge of the exist. ence of the pit on the part of appellant. The facts already recited are such that the law raises the presumption that the company knew of the existence of the pit. In Reed v. Northfield, 13 Pick. 396, the court said: "Notice may be inferred from the notoriety of the defect, and from its con. tinuance for such a length of time as to lead to the presumption that the proper officers of the municipality did in fact know, or, with proper vigilance and care, might have known, the fact." 9 Amer. & Eng. Enc. Law, 405, and authorities there cited: Pennsylvania Co. v. Sears, 84 N. E. Rep. 15, (at this term,) and authorities there cited. The writer is of opinion that a rehearing ought to be granted, but in this the other members of the court do not concur. The petition is therefore overruled. (8 Ind. App. 239) BANK OF WESTFIELD v. INMAN et al.1 (Appellate Court of Indiana. May 13, 1893.). ACTION ON NOTE-EVIDENCE-INSTRUCTIONS— PRESUMPTIONS ON APPEAL. 1. In an action by a bank on a note given by a depositor for a supposed overdraft, de fendant answered that there was no overdraft, and that by reason of overcharges and omissions in his account there was a balance due him, and a bill of particulars was filed. Several hundred items were given in evidence, and the court charged that defendant could not recover on any item not included in the bill of particulars. Held, that it would be presumed, in the absence of evidence to the contrary, that the jury included in the verdict no items not set out in the bill of particulars. 2. An objection that an item admitted in evidence was not included in the bill of particulars cannot be first raised on appeal. 3. Evidence of a payment not included in the bill having been admitted without objection, it was not error to admit the check with which defendant made such payment, since, where a principal fact is given in evidence without objection, it is not error to receive evidence of a subsidiary or corroborative fact. 4. There were numerous disputed items in the account, but the court charged, in regard to three notes given to the bank, that if they had been paid, and no credit given by the bank, "these are all the matters proper for you to consider" in determining whether the bank was indebted to defendant. There were also several charges as to other disputed matters. Held, that the above instruction was erroneous and misleading. Appeal from circuit court, Hamilton county; J. T. Cox, Judge pro tem. Action on a note by the Bank of Westfield against Robert C. Inman and others. From a judgment for defendants, plaintiff appeals. Reversed. Kane & Davis, for appellant. Fertig & Alexander, for appellees. LOTZ, J. The appellant sued the appellees upon a promissory note. The appellees answered jointly that the note was executed without any consideration. The appellee Robert C. Inman filed a separate answer of two paragraphs. The first paragraph of his separate answer alleged that he was the principal, and the other appellees were his sureties; that the appellant was at the time of the execution of the note and at the time of filing his answer indebted to him in the sum of $1,500 for money had and received for his use, and which had been converted to the use of appellant. The second paragraph of the separate answer averred that he executed the note as principal for an alleged overdraft; that in fact there was no overdraft, but that, by reason of divers errors, overcharges, and omissions in his account as a customer and depositor in said bank, there was $1,500 due him, for which he prayed judgment. A Rehearing denied, 31 N. E. 070. See 32 N. D. 835. bill of particulars was filed with each of these paragraphs, in which certain errors were specifically pointed out, and it was also stated that there were other errors in the account which appellee was then unable to specify. No question is raised as to the sufficiency of the answer. There was a trial by jury, and a general verdict for all the appellees on the complaint, and a verdict for $1,076.92 in favor of the appellee Robert C. Inman on his separate answers. There were no interrogatories submitted to the jury. A motion for a new trial was filed, and overruled. After this ruling and at the same term of the court, appellant filed another motion for a new trial on the ground of newly-discovered evidence. The ruling upon each of these motions is assigned as error. Appellant earnestly insists that the ver dict is not supported by the evidence, and that there is error in the assessment of the amount of recovery in favor of appellee Robert C. Inman. It appears from the evidence that the appellee Robert C. Inman was engaged in buying and selling live stock, and that he did business through appellant bank; borrowed money, discounted notes, made deposits there, and gave checks upon it. The business extended over a period of more than two years, and in the aggregate a large sum of money was deposited and checked out of said bank. The whole account of the dealings between them was given in evidence. We have looked into the evi dence, and, while we may have doubts as to the correctness of the verdict, yet, under the familiar rule, when there is any evidence tending to support the verdict the appellate courts will not disturb the judgment on such grounds. Appellant insists that it is apparent that the jury included one item of $750 in the verdict which was not contained in the bill of particulars; that this was erroneous, and renders the amount of recovery too large. Whether or not, under the pleadings, the appellee was confined to the items specifically designated in the bill of particulars, we need not decide. The whole account of debit and credit, including several hundred items, was given in evidence without any objection except as to a few items. In this condition of the evidence it is difficult to determine what items were or were not considered by the jury in reaching the verdict. The court expressly instructed the jury that "the defendant would not be entitled to a verdict against the plaintiff on any item not included in such bill of particulars." In the condition of the evidence this court will presume that the jury followed the instruction given, and that the verdict contained only such items as were set out in the bill of particulars. Another cause assigned for a new trial is that the court erred upon the trial in allowing the appellee Robert C. Inman to testify relative to the execution of a note for $750 about the time of a purchase of a lot of hogs from one Roberts, and the payment of said note, for which he claimed he did not receive credit or money. This item was not embraced in the bill of particulars, and for that reason it is contended that the evidence was erroneously admitted. At no time on the trial was the objection raised that this item was not in the bill of particulars. The record shows that the appellee testified that he had made a note to the bank for $750, which should have been, but was not, credited to his account, and that he drew a check to Roberts on the same day for the amount, and paid the note off within a day or two afterwards, but received neither credit for the note nor for the money paid in its discharge. He then offered the check in evidence. To this the appellant objected on the ground that the check was not in controversy. The principal fact to which the appellee's testimony related upon this point was that he had made his note and paid it off, and had not received credit, although the note was charged against him in the account. Where the principal fact is given in evidence without objection, it is not reversible error to give in evidence a subsidiary or corroborative fact. Another cause for which a new trial was asked is that the court erred in giving to the jury a certain instruction prepared and asked by the appellee Robert C. Inman. The iustruction is in these words: "If the defendant R. C. Inman executed his note to the plaintiff bank for $950, and received credit on his deposit account for such note in the sum of $949, being the amount of said note, less the discount, and afterwards paid off said note in full by the payment of cash into the bank, for which he received no credit on said deposit account, and the amount of note, $950, was afterwards charged against him along with checks drawn on said account, or if the defendant executed a note to said bank for $750, and did not receive any money thereon, and did not receive credit therefor on his deposit ac. count, nor otherwise, and afterwards paid the said note in cash to the bank, and received no credit for the money so paid, and, in like manner, if the defendant made a note to said bank for $123.52, for which he received no credit for the money so paid, these are all the matters proper for you to consider in arriving at a conclusion as to whether the defendant Robert C. Inman was indebted to plaintiff at the date of the execution of the note in suit, and as to whether the plaintiff is now in fact indebted to the defendant Robert C. Inman." Appellee's learned counsel have not favored us with a discussion of this alleged error, and we are left in the dark as to their theory of its correctness. These three items-the $950 note, the $750 note, and the note for $123.52-are singled out by the instruction, and the jury are told that "these are all the matters proper to consider" in determining whether Robert C. Inman was indebted to the plaintiff, or whether the plaintiff was indebted to Robert C. Inman. The use of the phrase "these are all the matters" conveys the idea of exclusiveness; that is to say, the only matters. If this is the proper construction to be put upon the instruction, standing alone, we do not see upon what theory it can be upheld. There were many matters given in evidence; there were several hundred items of account, various conversations, notes, and bank checks introduced by both parties without objection; and yet the jury are told that it is proper to consider only three matters. If the article "the" before the word "matters" was omitted, we see no objection to it, for it would then say to the jury "these are all matters proper for you to consider." But the definite article "the" before the word "matters" conveys the idea that the jury must consider only these three matters or things, and none other. To determine whether or not this instruction was misleading, it must be considered in connection with all the other instructions given in the case. There were a number of other instructions that directed the jury's attention to many other matters, and under such circumstances the jury could hardly be given to understand that these three notes were the only matters to be considered by them. The idea intended to be conveyed by the instruction, when considered in connection with the other instructions, no doubt was that there were only three items in the set-off that were in controversy, and that it would be unnecessary for the jury to consider any other. When a fact or facts are admitted or are undisputed, the court has the right in instructing the jury to treat them as proved, without invading the jury's province. But as we understand the evidence there were many other disputed items. Appellee's counsel in their brief assert that it was another and different item than the $750 note, to wit, the $700 received from the express company, that went to make up the verdict. Again, they say in their brief that "the whole account was involved in the controversy. The ultimate question was not as to any particular items of debits or credits, but as to the final balance." We do not think the instruction can be justified upon any theory. If it was intended to convey the idea to the jury that there were only three items of evidence proper for them to consider, or only three matters in controversy, then it is clearly bad, in the light of the record of this case, for it usurps the functions of the jury. Nor will it do to say that the instruction limited the jury's consideration to three items in the answer of set-off, for one of the three items-the $750 noteis not found in the bill of particulars; and, further, if this was the intention, it is squarely contradictory of the other instruction from which we have above quoted. This conclusion renders it unnecessary to pass upon the other questions discussed by counsel for appellant. Judgment reversed, with instructions to grant a new trial. DAVIS, J., having been of counsel, did not participate in this decision. |