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fore death takes place, on account of the negli- Section 4178, Rev. Stat. 1881, was repealed gence of a telegraph company in not delivering a by the later Act of 1885. message promptly according to its contract, is a

W.U. Teleg Co. v.Steele, 108_Ind. 183; W.U. ground for the recovery of substantial damages Teleg. Co. v. Wilson, Id. 308; W. U. Teleg. Co. v. against the company.

Swain, 109 Ind. 405. 8. A message reading. “My wife is very ill;

The Telegraph Company was bound to know not expected to live," is sufficient to inform the that wounded feelings and anxiety of mind company that mental anguish will probably result from its failure to deliver the message ly transmit and deliver the message. This was

were likely to result from the failure to properpromptly.

apparent from tbe message itself, and damages (March 14, 1890.)

occasioned from failure to transmit or deliver

the same promptly can be recovered. PPEAL by plaintiff from a judgment of the W. l. Teleg. Co. v. Fenton, 52 Ind. 1; Rev. his favor but for a less amount than claimed Ind. 53. in an action to recover damages for the failure Such damages may be recovered as naturally of defendant to promptly deliver a message. flow from the breach of duty complained of, or Rerersed.

such as may fairly be supposed to bave been The facts are fully stated in the opinion. within the contemplation of the parties as a

Mi88r8. M. E. Clodfelter and J. A. Lind. possible result at the time the dispatrb was sent. ley, for appellant:

In determining what was fairly within the con

A ;

man who was far from home with the dead body | Teleg. Co. v. Steele, 6 West. Rep. 410, 108 Ind. 163. of her husband, calling for a remittance of money, Averments in the complaint that defendant is a in consequence of which mistake sbe was delayed corporation, and that it was operating its line, are for two days before receiving the money to enable sufficient on demurrer. W. U. Teleg.Co.v.Walker, ber to leave that pluce with his body. W. U. Teleg. 1 West. Rep. 210, 102 Ind. 599. Co. v. Simpson, 73 Tex. 422.

A complaint which alleres that “defendant is

the owner and operator of an electric telegraph, Statutory penalty for neglect.

with a line of wires," running through a certain The Indiana Act of 1835 prescribing a penalty for county, including stations in such county, is suffi. the refusal of a telegraph company to receive and cient. W. U. Teleg. Co. v. Scircle, 1 West. Rep. 214 transmit messages without discrimination does not 103 Ind. 227. make the company liable to a penalty for the mere Where the exact words of the law are not used negligent breach of duty. W. U. Teleg. Co. v. in the complaint, but words of equivalent meaning Jones, 116 Ind. 361.

are employed, it is sufficient. W. U. Teleg. Co. v. Under Rev. Stat. 1881, 8 4176, providing a penalty Walker, 1 West. Rep. 210, 102 Ind. 599. when a telegraph company fails to transmit a A company cannot escape liability by asserting message " with impartiality and in good faith," re- its own failure to provide adequate means for covery sustained where the message written was transmission. W.0. Teler. Co. v. scircle, supra. * Send

seventieth Illinois," and transmitted To consume hours instead of minutes in the “seventh," although the message was not re- transmission is not such diligence as the statute peated, and was written on a blank requiring repe. requires. lbid. tition to avoid mistakes. W. U. Teleg. Co. v. Wbere the gravamen of the complaint, in an ac. Huff, 3 West. Rep. 376, 10:2 Ind. 535.

tion for a statutory penalty, is for failure of a The Mississippi Act of March 18, 1886 (Miss. Acts telegraph company to comply with its duty, an at1886, p. 91), providing that any telegraph company tempt argumentatively to deny is insufficient. W. failing to transmit and deliver within a reasonable U. Teleg. Co. v. Ferris, 1 West, Rep. 211, 103 Ind. 91. time any message shall pay $25 in addition to other damages to the person injured, gives the right to

Proof to establish neglect. recover such sum to one to whom the message is In an action for the penalty provided by statute addressed, although he paid nothing for its trans. for the omission to send a telegram, it devolves on mission and sustained no pecuniary injury. W.U. plaintiff to establish a neglect of duty. W. U. Teleg. Co. v. Allen, 66 Miss. 519.

Teleg. Co. v. McDaniel, 1 West. Rep. 273, 103 Indo The company may stipulate that the claim for 294; Aiken v. W. U. Teleg. Co. 69 Iowa, 31. penalty shall be presented within a reasonable He makes a prima facie case when be proves that time. W. U. Teleg. Co. v. Wilson, 6 West. Rep. 548, the message properly addressed was not delivered. 108 Ind. 308.

W. U. Teleg, Co. v. McDaniel, supra.
Pleadings in action to recover penalty.

The plaintiff was properly permitted to testify

that the dispatch received. as read by him, directed The penalty for failure of a telegraph company him to purchase at a certain price,--for the pur. to transmit a message is not incurred unless the pose of showing his good faith in purchasing at omission is alleged to be within reasonable office that price, and that he acted upon the dispatch in hours, both at the place of reception and the place making the purchase, but not for the purpose of of transmission, W. U. Teleg. Co. v. Harding, 2 showing what was the reasonable interpretation of West. Rep. 206, 103 Ind. 505.

the dispatch. Aiken v. W. U. Teleg. Co. supra. An answer stating that the delay in delivery was Where the sender proves that there was unreste caused by its pot reaching the point of delivery sonable delay, the burden of explaining the delay until after the close of office hours is good on de is on the company. W. U. Teleg. Co. v. Scircle, 1 murrer. Ibid.

West. Rep. 216, 103 Ind. 227: W. U. Teleg. Co. v. The complaint to recover a statutory penalty for McDaniel, supra. failing to transmit a message must aver facts Facts which go to excuse the failure to transmit which bring the case within both the letter and a telegraph message delivered during usual othce the spirit of the stutute. W. U. Teleg. Co. v. hin hours, according to the regulations of the com. ney, 4 West. Rep. 512, 108 Ind. 468.

pany, in a suit for the statutory penalty, must A complaint which sbows a mere neglect of duty come from the defense. W. U. Teleg. Co. v. Bus in transmitting a message is not suficient. W. U kirk, 6 West. Rep. 871, 107 Ind. 549.

templation of the parties, the contents of the after it was so received, and never did deliver dispatch may be taken into consideration. it until called for by the said Clements, at the

Candlee v. W.U. Teleg. Co. 34 Wis. 471 ; Bald. appellee's office id said City of Crawfordswin v. U. S. Teleg. Co. 45 N. Y. 744; Beaupré ville; that during all the time said message lay V. Pacific & A. Teleg. Co. 21 Mion. 155 ; in the appellee's office in Crawfordsville, the Barnesville First Nat. Bank v. W.U. Teleg. Co. appellee trapsunitted messages for sundry and 80 Obio St. 555.

divers other persons, and knowingly, purposeMessrs. McDonald & Butler, for appellee: ly and willfully gave preference to others and

The Company could pot, from the informa- to the delivery of messages to others; that the Lion it had before it when it entered into the said messages so transmitted to tbe said supdry undertaking, know tbat mental anguish migbt and divers persons did not contain intelligence and most probably would result to some person of general or public interest, and were not comin case of failure to promptly deliver the dis-munications for or from otticers of justice; patch, and for this reason appellant cannot re- that the said Clements thed bad business rooms cover substantial damages.

repted in said City of Crawfordsville, and was W. U. Teleg. Co. v. Kirkpatrick (Tex.) 13 preparing to go into business only a few doors 8. W. Rep. 70; Barnesville First Nat. Bank from appellee's office; that he had a postv. W. U. Teleg. Co. 30 Obio St. 555; Baldvin office box rented in the postoffice of said city v. U. 8. Teleg. Co. 45 N. Y. 744; Beaupré v. through which he received bis mail during the Pacific & A. Teleg. Co. 21 Minn. 155 : Lands- time ihe said message lay in the appellce's said berger v. Magnetic Teleg. Co. 32 Barb. 539; office (the said postollice being but a few doors Kinghorne v. Montreal Teleg. Co. 18 U. c. Therefrom); tbat the said Clements was well Q. B. 60, Allen, Teleg. Cas. 98; U. S. Teleg. kdown to the postmaster and the employés in Co. v. Gildersleve, 29 Md. 232; Lowery v. W. said postoflice; that it was the appellee's custom U. Teleg. Co. 60 N. Y. 198; W. U. T'eleg. Co. to deliver messages promptly anywhere within v. Graham, 1 Colo. 230; Pullman Palace Car | five miles of said city, payment of charges Co. v. Barher, 4 Colo. 344.

being first guaranteed. Mental suffering alone, caused by simple ac- Tben follows a demand for $100, the statutionable negligence, cannot sustain an action. tory penalty, wbich it is claimed the appellant

Wyman v. Leuritt, 71 Me. 227; Hunt ads. is entitled to recover. D'Orcal, Dudley (S. C.) 180; Bovee v. Danville, The second paragraph rests upon a breach of 63 Vt. 183; Canning v. Williamstown, 1 Cush. duty because of a failure to deliver the message. 451; Trigg v. St. Louis, K. C. & N. R. Co. 74 It is averred that wben the contracı was made to Mo. 153; Slote v. Baltimore & 0. R. Co. 24 Md. send and deliver the message with the appel. 84 ; Cooley, Torts, 270-272.

lee, the appellant's wife was dangerously ill,

in fact at ibe point of death ; that the said A. Berkshire, J., delivered the opinion of the S. Clemenis, to whom the telegram was sent,

was a brother-in-law of ibis appellant, having The complaint is in two paragraphs. The married his sister, and that the families were substance of the first paragraph is that, on the on the most intimate terms of friendship: that 27th day of February, 1837, the appellant de appellant greatly desired ibe prompt delivery livered to the appellee's agent, at its office in of said message, and relied on and expected Jamestown, Indiana, the following message: tbat the same would be promptly transmitted

and delivered in accordance with the agreeFebruary 21st, 1887. Jamestown, Indiana. ment stated ; that the appellee and its agents TO A. S. Clements;

were fully informed of said facts, and well My wife is very ill ; not expected to live. knew the importance of the immediate delivery

Wm. Reese. at the time it received the message and the

said guarantee. -and paid to the appellee the sum of twenty

It is a verred that the said Clements resided five cents, the usual charge for the transmis during said time not less than one nor more than sion of like messages to the City of Crawfords- two miles from said City of Crawfordsville; reville, and the full amount demanded for transceived bis mail at the postoffice in said city, and mitting said message, and at the same time the bad a box in said office througb which be reappellant guaranteed the payment of all expen-ceived bis mail; that be bad resided in and Bes incurred by the appellee in the delivery of within said city for several years before said said message to the person to whom it was date, and was well known in said city ; that be addressed ; that the appellee undertook and bad then arranged to engage in business there ; agreed to transmit and deliver said message that the wife of the appellant died in a few days prompily ; tbat ibe appellee acted in bad faiih after the said message was transmitted ; that if and with partiality and discrimination, in that said message bad been promptly delivered, the it did not transmit and deliver said message said Clements and wife would bave been present in the order of time in which it was received, during the last sick pess of appellant's wife, and but willfully and purposely postponed the in time to bave conversed with ber before ber transmission of said message out of its order death, and been present uutil her death and for more than twenty days; that after the trans burial ; ibat by reason of their absence and of mission of said message from the appellee's the great desire the appellant's wife bad exoffice in Jamestown, the appellee acted in bad pressed to see them before her deatb, tbe apfaith, partiality and discrimination in this, that pellant suffered great uneasiness, anguish and it willfully and purposely postponed tbe de anxiety of mind. livery of said message out of the order of The court at first overruled a demurret to time in wbich it was received, and did not each of the paragraphs, and the appeljee filed deliver the same for more than twenty days I an answer in three puragraphs, the first of which

court:

was a general denial. The second paragraph ap: We think the answer was bad, and that the plied to the first paragraph of the complaint, and demurrer should bave been sustained. The the third paragraph to the second paragraph of second paragraph of complaint showed a good the complaint.

cause of action, and the court so beld. Under The court having afterwards sustained the it the appellant was entitled to more than pomidemurrer to the first paragraph of the com- pal damages, and more than the sum of 50 plaint, this carried out of the record the sec- ceuts, wbich the court allowed. ond paragraph of answer.

If the facts alleged in the complaint were The appellant demurred to the third para true, the appellant was entitled to substantial graph of answer, wbich the court overruled, damages, and the facts set up in the answer and be saved an exception; he then filed a reply did not avoid the appellant's rigbt to recover in general denial. The issues joined were sub- substantial damages under the allegations of mitted to the court without a jury, and, after the second paragraph of the complaint. hearing the evidence, a finding was made for The message was one of more than ordinary the appellant, assessing his damages at fifty importance. Of its important character the cents. The appellee then moved for a judg. agents of the Company at Jamestown and ment against the plaintiff for costs; this motion Crawfordsville had knowledge, for the reason was sustained, to which ruling the appellant that this information appeared on the face of reserved an exception. The court then ren the telegram. It was a message which denoted dered a judgment against the appellee for fifty urgency for its delivery, to the person to cents, and against the appellant for costs. wbom addressed, and of this fact the appellee

At the time the court reversed its ruling, and bad potice, and contracted with reference to it. sustailed the demurrer to the first paragraph It therefore became the duty of the appellee of the complaint, the appellant saved an excepto make a prompt and reasonable effort to de tion.

liver the message to the person to whom it was The errors assigned are that the court erred addressed, and especially so, as the expense of in sustaining the demurrer to the first para- delivery was guaranteed in advance. This obgrapb of the complaint, in overruling the de ligation the appellee wholly and entirely failed murrer to the bird paragraph of answer, and to perform, and in such failure was guilty of in sustaining the motion of the appellee for a negligence. judgment against the appellant for costs. Although the telegram had no relation to

There is not much to be said in reference to any business transaction whicb would have in. the demurrer to the first paragraph of the voived dollars and cents merely, ibis did not complaint. We are of the opinion that the justify the appellee in neglecting its duty. It averments in the said paragraph did not make bad undertaken, for a valuable consideration, a case witbio $$1170 and 1172, Ellioit's Sup- to deliver the message promptly, and its failure plement (ACIS 1885), when construed with so to do, or to make reasonable effort in that 8 4178, Rev. Slat. 1881, and the three sections direction, was negligence and a violation of its must be construed together,

undertaking. It is claimed that the Act of 1885 repealed by Tbe diligence which a telegraph company implication said section 4178. We do not think is required to use in the delivery of a message 80. The repealing clause only repeals such will be determined, to some extent, from the laws as are in conflict with the said Act. In character and importavce of the message. its scope it does not cover the subject matter to Upon humane grounds messages like the one which said section 4178 relates. There is noth. here involved should be prompily delivered, ing in the Act of 1885 regulating the distance or and should be regarded as of more imporiance prescribing the limits within which telegraph to the parties concerned than mere business companies shall deliver messages. Repeals by messages, and in promptness of delivery implication are not favored, and if a reasonable should have preference over messages of construction can be found which will enable the latter class. It is true there was nothing both the old and the new laws to stand, that in the telegram to indicate the kinship that exconstruction will be applied. Bush v. Ham. isted between the appellant and the person to illon Co. Comrs. (Ind.) 23 N. E. Rep. 275. whom the message was addressed, nor did it

It is not alleged that the person to whom request the presence of Mr. Clements or bis the telegram was addressed resided in or within wife at the bedside of the dangerously sick sis. one mile of the City of Crawfordsville.

ter-in-law, but this affords no excuse to the apPenal statutes are to have a strict construc- pellee for its failure to deliver the telegram. tion, and to recover a penalty the facts stated The appellee was bound to know that tbe mes. in the pleading must clearly show a right to sage pertained in some way to the serious illuess the penalty claimed, notwithstanding such of the appellant's wife, and, therefore, that strict construction. Hadley v. W. U. Teleg. prompt communication with the person to Co. 115 Ind. 191.

whom the message was addressed was much The third paragraph of the answer was desired, and especially so in view of the addi. pleaded as a partial answer, but it was in bar tional fact that the appellant undertook to come of all damages except nominal damages. This municate by a telegraphic dispatch. paragraph, in substance, is that the appellee From the information it had before it when was not informed, when it undertook to send it entered into the undertaking the appellee was the message (by wbat appeared in the face of bound to know that mental anguish might and it or otherwise), that the appellant would suffer most probably would come to some person in pecuniary loss or be damaged because of men. case ii failed to act promptly in transmitting tal suffering in case of a failure to deliver the and delivering the dispatch, and therefore such message.

a result was contemplated when the messago was delivered by the appellant to the appellee's | ing suffered great mental anguish because, as agent at Jamestown, and is within the under- be alleges, of the failure to promptly deliver taking.

the message, it would be a harsh rule which Whether such mental suffering would be would deny to him all redress except the mere caused by the failure of a brother-in-law and pillance which be paid to have the telegram bis wife to go at once to the bedside of a dying transmitted and delivered. sister-in-law, or from the failure of a physician Some of the authorities seek to draw a distincto reach bis patient wbile there was still hope tion as to the right to recover damages for menthat something might be done to bring relief tal suffering between cases where there may be and possibly a restoration of health, or for a recovery for pecuniary loss and cases wbere some other cause, is unimportant. It was not there is or can be no pecuniary loss, to wbich the particular cause but the effect which might class the present action belongs. With this dig. de produced, that was contemplated by the par- tinction we have no sympathy, and confess we ties, and which is to be looked to in deiermining can see no good reason for it to rest upon. If a the question of liability.

telegraph company undertakes to transmit and In W. U. Teleg. Co. v. Sheffield, 71 Tex. 570, deliver promptly a message wherein dollars and a telegram was delivered to the company's cents are alone involved, and its negligence operator to be forwarded, in the following occasions loss, it is conceded by all the authorlanguage: "You had better come and attend ities that it may be compelled to respond in to vour business at once.

damages. Why? Because it bas degligently The court said that the message indicated broken its agreement, or, as is sometimes said, with reasonable certainty to the telegraph oper- failed to perform a duty wbich it owed to the ator the following facts:

sender of the message or the person to whom it 1. That the plaintiffs had a claim of some is addressed, as the case may be. For the same pecuniary nature.

pecuniary consideration it undertakes to trans2. That the claim should be attended to at mit and deliver a message informing a busband Jefferson, from wbence the telegram was sent. of the dangerous illness of his wife, the wife

3. Tbat tbe matter was urgeut "at once.” of her husband, the parent of the child, the

4. Loss would probably follow the want of child of the parent, and it negligently fails to such attention which might be prevented by deliver the telegram, and as the result the sick obeying the call made in the dispatch.

relation dies without having the comforting This was sufficient to disclose that the object presence of the busband, wife, father, mother, was to enable the plaintiffs to attend to a claim son or daughter, with all the benefit, physical due them, and that loss migbt result from & and mental, which would follow. Is it to be failure to transmit the message with prompt- said tbat under such circumstances the most ness.

that the telegraph company is liable for is pomIn Halley v. W. U. Teleg. Co., 115 Ind. 200, | inal damages because of great mental anguish the court said, by Niblack, J., with reference suffered by the sender of the telegram, who to tbe following telegram:

may be the fatber, molber, busband, wife or

child? In our judgment, no such rule can or North Salem, Ind. Oct. 14, 1886. should prevail. In failing to promptly deliver To Henry Hadley, Danville, Indiana. a telegram the telegraph company negligently

Want your catile in the morning; meet me at fails to perform a duty which it owes to the your pasture.

S. C. Clay. sender of the telegram, and sbould be held liable

for whatever injury follows as the proximate “In this case the terms or contents of the result of its negligent conduct. dispatch sent by Clay to Hadley fairly indicated It is not a mere breacb of contract, but a the necessity of its prompt delivery, as well as failure to perform a duty which rests upon it a transmission, and were such as to authorize as a servant of the public. the inference that a delay until the day follow- In our opinion, upon the fact stated in the ing would result in confusion and possible, if second paragraph of complaint, the appellant pot probable, injury to one or both parties to is entitled to recover damages for the mental tbe dispatch.'

suffering which he endured, and his measure In Manrille v. W. U. Teleg. Co., 37 Iowa, 214, of damages is the amount paid for the transMiller, J., said: “The message was 'Ship your mission of the message, and, in addition, what hogs at once.' The obvious reason of this is would seem to be just as a compensation for evident on its face. It clearly imports that to his mental anguish. meet a good market tbe bogs must be shipped We have examined the case of W. U. Teleg. promptly, and that by delay a good market Co. v. Hamilton, 50 Ind. 181. That was an will be lost. It is equivalent to saying, 'If you action to recover a statutory penalty, and what ship at once you will obtain gains on the pur. is said as to the measure of damages in an acchase and sale of your bogs. If you delay tion like the one under consideration is mere these gains will be lost by the market price de- dicta, as no such question was before the court. cliving. It is most obvious, therefore, that the See W. U. Teleg. Co. v. Cooper, 71 Tex. 507, 1 L. parties contemplated this very thing.”

R. A. 728, 10 Am. St. Rep. 772, and note; As we have already said, the message clearly Wadsirorth v. W. U. Teleg. Co. 86 Tenn. 695, 8 indicated its importance and the urgency for its Am. St. Rep. 864, and note; Beasley v. W. 0. prompt delivery. There were no pecuniary Teleg. Co. 39 Fed. Rep. 183. benefits contemplated as the result of the tele- Judgment reversed, with custs. Court below gram, as it bad no reference to any business directed to proceed in accordance with this transaction, and therefore pecuniary loss be- opinion. cause of its non-delivery was not within the appellee's undertaking. But the appellant hav. Petition for rebearing overruled.

TERRE HAUTE & INDIANAPOLIS R. Shaber v. St. Paul, M. & M. R. Co. 28 Mion. CO., Appt.,

103; O'Leary v. Mankato, 21 Mion. 65; Phelps . 0.

V. Mankato, 23 Mino. 276.
Alfred CLEM.

It was an admission that appellant controlled

this crossing, and comes wiibin the rule laid (....Ind.....)

down in 1. The presumption of negligence on the

Lafayette v. Wenrer, 92 Ind, 479; Relry v. part of a railroad company, which prevails in Southern Minnesota R. Co. 28 Minn.'98; Penn. case of an injury to its passenger, does not obtain sylvania R. Co. v. Henderson, 51 Pa. 915: West in case of injuries to the horse of a traveler upon Chester & P. R. Co. v. McElree, 67 Pa. 311; a highway, which are received while the travo McKee v. Biduell, 74 Pa. 218; Martin v. Torcle,

eler is attempting to cross the railroad track. 59 N. H. 31; Gulf, C. & 8. F. R. Co. v. L'aun2. A railroad company is not required sich, 63 Tex. 54.

to use extraordinary care or vigilance in

respect to the safety of its highway crossings. Elliott, J., delivered the opinion of the 3. Permitting incompetent evidence court: tending to support a finding to go to the The appellee recovered a judgment for dam. jury over objection will cause a reversul of the ages for an injury to a borse wbich he was judgment, where the other evidence in support of driving. The theory of the appellee is that

such finding is not of a satisfactory character. the appellant was negligent in constructing & 4. Evidence of repairs made after an injury crossing at a point wbere its railroad crossed has been sustained is incompetent to show ante- a public road, and that the injury to bis borse cedent negligence.

was caused by the appellant's negligent breach (March 19, 1890.)

of duty.

It is quite well settled that it is the duty of a A de to

the Circuit Court for Carroil Couoty in tain its crossings tbat they may be safely used favor of plaintiff in an action to recover dam- by persons traveling the bigh way, and that, ages for injuries to a borse, alleged to have re- for å degligent breach of this duty, it must an. sulted from defendant's negligence. Reversed. swer in damages to one who exercises ordinary

Tbe facts sufliciently appear in the opinion. care and sustains an injury from the breach of

Mes8r8. John G. Williams and S. 0. duty by the company. Èransville & T, U, R. Bayless, with Messrs. W. H. Russell and Co v. Crist, 116 Ind 446; Evansrille & T. H. R. F. F. Moore, for appellant:

Co. v. Carvener, 113 Ind. 51; Indianapolis & St. The couri erred in allowing appellee to prove L. R. Co. v. Stout, 53 Ind. 143. that long after the accident and after this case The appellee's counsel are in error in assum. had once been tried, the appellant had rebuilt ing that the same rule applies to actions for the the crossing in question and put down plauks recovery of injuries received at a crossiog that with square edges next the rail.

ap; lies in cases where passengers are injured Pierce, Railroads, 294; Dale v. Delaware, L. while on the trains of the carrier. The pre& W. R. Co. 73 N. Y. 471; Payne v. Troy & B. sumption of negligence which prevails in such R. Co. 9 Fun, 526; Ely v. St. Louis, K, C. & N. cases does not obtain in such a case as this; and R. (0.77 Mo. 34; Nalley v. Hartford Carpet the cases of Cleveland, C. C. & I. R. Co. v. Co. 51 Conn. 524, 50 Am. Rep. 47; Morse v. Newell, 104 Ind. 264, and Terre Haute & I. R. Minneapolis & St, L. R. Co. 30 Mion. 465, 11 Co. v. Buck, 96 Ind. 347, are not in point. Am. & Eng. R. R. Cas. 168.

The evidence upon the question of negligence Messrs. L. D. Boyd and L. G. Beck, for in this instance is not of that satisfactory char. appellee:

acter which authorizes us to declare that the Appellant owed it as a duty incumbent upon judgment should be aflirmed although incom. it as a common carrier resting under the re petent evidence was admilled. If, therefore, sponsibility of exercising extraordinary care we find that incompetent evidence was per. and prudence to see that this crossing was in a mitted to go to the jury over the objection of safe and proper condition.

the defendant, we must reverse the judg inent. Meredith v. Reed, 26 Ind. 334; Toledo & W. The appellee was permitted to prove that R. Co. v. Stoddard, 25 Ind. 185; Louisville, N. after the accident occurred the appellant A. & C. R. Co. v. Smith, 91 Ind. 119.

changed and repaired the crossing. This was When an injury occurred like the one de- error. Evidence of repairs made after an inscribed in this case, it was upon the defendant jury has been sustained is incompetent to show to prove that it was without fault.

antecedent negligence. Patterson, Railway Accident Law, pp. 348- This question was carefully considered by 441; Be ford, 8. O. & B. R. _Co. v. Rainbolt, the Supreme Court of Minnesota in the case of 99 Ind. 556; 1 erre llaute & I. R. Co. v. Buck, Morse v. Minneapolis & St. L. R. Co., 30 Mind. 96 Ind. 347; Columbus, C. C. & 1. R. Co. v. 465, and three of the earlier decisions of that Newell, 104 Ind. 264; Louisville, N. A. & C. R. court were overruled. In the course of the Co. v. Jones, 7 West. Rep. 33, 108 Ind. 551. opinion in that case it was saiil: “But, on ma

The admission of incompetent evidence ture reflection, we have concluded tbat evidence wbich a special finding of the jury shows to of this kind ougbt not to be admitted under have no weight with them is a barmless error. any circumstances and tbat the rule heretofore

Annar v. Milwaukee & N. R. Co. 67 Wis. 46. adopted by this court on principle is wrong, By making the repairs the appellant admitted not for tbě reason given by some of the courts that it made a mistake when it beveled off its that the acts of tbe employés in making such plank, and by tbus correcting this mistake it repairs are not admissible against their prinwould tbus prevent similar accidents.

cipals, but upon the broader ground that such

See also 31 L. R. A. 170.

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