TRIBUTORY NEGLIGENCE.

it, and has from time immemorial collected | 3. NEGLIGENCE (§ 113*) — PLEADING - CONin small well-defined branch streams, made by the action of the water, and through them reached and emptied into Ross Run after crossing the highway under said culverts. No new channel has been made on or across

If a complaint for negligent injury does not aver facts affirmatively showing, as a matter of law, that plaintiff was guilty of contributory negligence, it cannot be held insufficient as disclosing a defense.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 186-193; Dec. Dig. § 113.*] 4. TRIAL (§ 242*)-MISLEADING INSTRUCTIONS -CONTRIBUTORY NEGLIGENCE.

In a personal injury action, an instruction that the burden was on defendant to show contributory negligence, and that the defense must be proved by a fair preponderance of all the evidence in the case, was not erroneous as misleading the jury to believe that contributory negligence could be proved by defendant's case only.

appellant's land, and the water from appellees' lands now, as formerly, passes through natural channels across appellant's lands to Ross Run. Certain tile ditches have been constructed on the lands of appellees and empty into said branch streams on the lands of appellees. Appellant claims that these tile drains collect more water and precipitate it in shorter time than resulted from the natural drainage before the tile ditches were constructed. There is evidence tending to prove that, before the tile drains were constructed, Ross Run carried a greater volume of water than it has since the tile drains In a personal injury action, it was not have been in operation; that some of the error to refuse to instruct that contributory tile ditches on appellees' lands drain a pond, negligence might appear from plaintiff's testithat was the source of Ross Run, into anoth-mony, as well as that of defendant, where the court instructed that the defense must be proved by a fair preponderance of "all the evidence in the case.'

er channel and away from appellant's lands. There was ample evidence from which the court could find that no more water came

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 569-576; Dec. Dig. § 242.*] 5. TRIAL (8 260*)-INSTRUCTIONS-REFUSALMATTER COVERED.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 260.*1

into said channels and reached Ross Run through appellant's lands since the tile drains 6. TRIAL (§ 202*)-INSTRUCTIONS-REFUSAL. It is error to refuse to give proper incomplained of were constructed than former- structions not fully covered by those given. ly resulted from the natural drainage of the [Ed. Note.-For other cases, see Trial, Cent. land, and that the construction and opera-Dig. §§ 474, 477, 482; Dec. Dig. § 202.*] tion of said tile drains on the lands of appel- 7. RAILROADS (§ 351*)-CROSSING ACCIDENTS INSTRUCTIONS — CONTRIBUTORY lees have not materially changed the volume or flow of water across appellant's lands, nor Such a finding in any way damaged him. shows no liability. Wharton v. Stevens, 84 Iowa, 107, 50 N. W. 562, 15 L. R. A. 630635, 35 Am. St. Rep. 296.

There is evidence supporting the finding and judgment of the trial court, and no error is shown harmful to appellant. Judgment affirmed.

PITTSBURGH, C., C. & ST. L. RY. CO. v.
COTTMAN. (No. 7,858.)

GENCE.

NEGLI

Since, in an action against a railroad company for injury to a pedestrian at a street crossing, the burden was on the company to show contributory negligence, it was proper to refuse to instruct that, if one is struck by a train at a crossing, the law deems the fault is prima facie his own, etc.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1193-1211, 1213-1215; Dec. Dig. § 351.*]

8. RAILROADS (§ 350*)-CROSSING ACCIDENTS -JURY QUESTION-CONTRIBUTORY NEGLI

GENCE.

In an action against a railroad company for injury to a pedestrian at a street crossing, whether he was guilty of contributory negli

(Appellate Court of Indiana, Division No. 2. gence held, under the evidence, a jury question.

March 6, 1913.)

1. RAILROADS (§ 344*)-CROSSING ACCIDENTS -PLEADING-CONTRIBUTORY NEGLIGENCE.

Since, in an action against a railroad company for injury to a pedestrian at a street crossing, the burden is on the company to show contributory negligence, it is unnecessary for plaintiff to aver any excuse for failing to observe the approach of the train which struck him.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1107-1112; Dec. Dig. § 344.*] 2. PLEADING (§ 34*) - CONSTRUCTION - PRE

SUMPTIONS.

The rule that a plaintiff is presumed to have stated his case as strongly in his favor as the facts warrant applies only to such facts as are necessary to constitute his cause of action, and does not apply to facts which tend to disclose a defense.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 66-74; Dec. Dig. § 34.*]

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*1 9. APPEAL AND ERROR (§ 1002*)-REVIEWSUFFICIENCY OF EVIDENCE.

In determining whether a verdict is supported by the evidence, an appellate court can consider only the evidence which tends to sustain it.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3935-3937; Dec. Dig. § 1002.*]

10. RAILROADS (§ 331*)-STREET CROSSINGSCARE REQUIRED OF PEDESTRIAN.

A signal or direction given by a watchman at a railroad crossing, directing a traveler on the highway to cross, is an affirmative assurance that there is no danger, relieving the latter from using the high degree of diligence and caution that would be otherwise required in approaching the crossing.

[Ed. Note.-For other cases, see Railroads, Cent.Dig. 88 1035, 1075-1078; Dec.Dig. § 331.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appeal from Circuit Court, Wayne Coun- to aver any fact showing an excuse for his ty; Henry C. Fox, Judge.

tion. The instruction thus tendered correct-ly at right angles. There was a sidewalk ly states the law and should have been given along the east side of Sixteenth street, and unless it is covered by instruction No. 10 the shanty of the crossing watchman stood given by the court. The instruction given in the street just west of this sidewalk, and told the jury that they should consider all seven or eight feet south of the track. The of the evidence in the case in passing upon point where appellee was standing immedithe question of contributory negligence; and ately before the accident was a short disthe instruction tendered and refused stated tance south of the watchman's shanty, and the same proposition in different form. It is there were no other obstructions of any chartrue that the instruction tendered is a little acter to interfere with his view of appelmore specific in calling attention to the evi- lant's tracks toward the west. Appellee left dence of the plaintiff as a part of the evi- the point where he was standing and ran dence in the case; and we see no reason why north along the sidewalk to appellant's south it should not have been given in connection track, where he came in contact with a lowith instruction No. 10, but we think that a comotive which had approached from the jury of intelligence would correctly under- west. The facts, so far as stated, are esstand and apply the instruction given. If tablished by the undisputed evidence; but we are right in this, the court did not err there is some conflict in the testimony as to in refusing to give the instruction tendered. the speed of the train and as to the occur[6] Appellant, at the proper time, request-rences immediately preceding the accident. ed the court to give certain instructions, There is some evidence tending to show that among which was one numbered 3, which the train was moving at a rate of speed in was intended to advise the jury as to the excess of the rate provided by ordinance; but law of contributory negligence, as applied to this evidence is not of a convincing or satisthe conduct of a traveler upon a highway | factory character. The plaintiff testified that in approaching a railway crossing. The in- the train was running very fast, much faster structions given by the court on this sub-than a street car; but on cross-examination he ject were not as full and specific as appel- testified that he did not see it till it struck lant had a right to ask; and, if this instruc- him, and that he judged of the speed by the tion properly stated the law in this particu- force with which he was struck. On re-exlar, it would have been error for the court amination he stated that he saw the train in to refuse to give it. New Castle, etc., Co. v. motion immediately before he was struck. Doty, supra; Keller v. Reynolds, 12 Ind. The only other witness who testified in favor App. 383, 40 N. E. 76, 280; McAfee v. Mont- of the plaintiff as to speed of the train was a gomery, 21 Ind. App. 196, 51 N. E. 957. man in charge of a team of mules a short distance from the crossing. He stated that he heard the train coming, and that he look. ed up and saw it just as the plaintiff was struck, and that he thought the train was running about 12 miles an hour; but on cross-examination he said, "Well, I couldn't explain how fast the train was running, because I did not see it until it was right at the crossing, and then the train came to a standstill as soon as it struck the boy; there fore I could not give any definite answer about what speed they were making." The engineer in charge of the locomotive testified that the train stopped to close a switch one square west of Sixteenth street, and that at the time of the accident was running from four to six miles an hour, and that it would have been impossible for the train to have attained a greater rate of speed in the distance it had moved after it was put in motion. The engineer is corroborated as to the speed of the train by three other members of the train crew, and by Harry McBride, a disinterested witness. Upon this question, the strong preponderance of the evidence seems to be in favor of the appellant; but there is some evidence tending to support the verdict, and, under the well-settled rule governing courts of appeal, we are not permitted to weigh conflicting evidence.

[7] Instruction No. 3, tendered by appellant, was, in most respects, a correct statement of the law as applicable to the facts of this case, but is erroneous in at least one particular, and for that reason the court properly refused to give it. The language which condemns the instruction is as follows: "If a person is struck by a train at a crossing, the law says the fault is prima facie his own; and these rules of law are firmly established, and, unless a party claiming damages proves to the satisfaction of the jury that he has complied with them, there can be no recovery." This may have been the law in this state prior to the enactment of the statute changing the burden of proof upon the question of contributory negligence in cases such as this; but, in the light of such a statute, the mere statement of the proposition is sufficient to demonstrate its fallacy.

[8] The only other question discussed by counsel for appellant is the sufficiency of the evidence to sustain the verdict. The evidence shows that appellee was a boy almost 13 years of age at the time of the accident which caused his injury. Between 1 and 2 o'clock in the afternoon of a September day, appellee was standing on the east side of Sixteenth street in the city of Richmond, Ind., at a point about 18 feet south of the The evidence in the record also tends south rail of appellant's railroad tracks strongly to show that appellee was guilty of which intersected Sixteenth street practical-contributory negligence. The uncontradict

ed evidence shows that he had an unobstructed view of the track toward the west from the place where he was standing, and that he ran north a distance of 18 feet to the track where he was injured without observing the approach of the train, and that the only object that could have obstructed his view for any part of that distance was the shanty of the watchman, which was six feet square. As an excuse for this conduct, the plaintiff testified that the watchman, who was standing beside him, touched him and told him to go on across the track. He states that from this he thought that no train was approaching, and that it was safe to cross, and that this is the reason he did not look for a train; that he took him at his word and started to run across; and that he was on the track when he was struck. Plaintiff further stated that, before he started to cross, he was standing with his back toward the west, and for that reason did not see the train approaching. This evidence of plaintiff was contradicted by that of the watchman, the engineer, and Herbert Williams, a disinterested witness. They all testified that the watchman was standing in the street in front of the shanty, and that he called to appellee when he saw him running toward the track, and that he tried to catch him, but that he was too late, and that appellee ran against the side of the locomotive and was injured. The watchman also testified that he did not say anything to appellee about crossing the track.

[9] The jury found that appellee was free from fault contributing to his injury. In determining whether the verdict in this respect is supported by the evidence, this court can consider only the evidence which tends to sustain it, and must ignore all evidence to the contrary. Clemtine Nichols Keys et al. V. McDowell et al. (decided by Appellate Court January 8, 1913) 100 N. E. 385. If the facts disclosed by the uncorroborated testimony of the plaintiff are true, then the question as to whether or not the plaintiff was guilty of contributory negligence was one of fact for the jury.

[11] Where there is a conflict in the evidence, it is the duty of the court to submit the question of fact to the jury; and the weight of the evidence and the credibility of the witnesses are questions to be passed upon by the jury in arriving at the verdict. After a verdict is returned, and a motion for a new trial is filed upon the ground that the evidence is insufficient to sustain the verdict, the trial court is called upon to weigh the evidence and to consider the credibility of the witnesses in determining whether or not the jury, by its verdict, has reached a correct result. In considering the evidence, the trial court is not governed by the same rules that confront this court on appeal. The trial court has an opportunity to look into the faces of the witnesses and to observe their conduct and demeanor while testifying, and his ability to judge of their credibility is equal, if not superior, to that of the jury. The duty, with its corresponding responsibility which the law thus imposes upon the trial court, is one which it cannot escape or shift to any other tribunal. The jury is in a sense responsible for the verdict; but the court is responsible for any judgment that may be pronounced thereon. If a court permits a verdict to stand which is not supported by evidence, or which is clearly against the greater weight of the evidence, the responsibility rests upon the judge, and cannot be shifted to the jury. If there is a total want of evidence as to some fact essential to the verdict, this court on appeal may correct the error; but this court is powerless to grant relief where the evidence is in conflict. The responsibility rests entirely upon the judge of the trial court to grant relief in cases where the evidence is conflicting, and clearly preponderates against the verdict returned by the jury.

We have referred at length to the evidence in this case for the purpose of emphasizing our remarks upon the duties of the trial judge in respect to weighing the evidence and considering the credibility of the witnesses in ruling upon the motion for a new trial, where the sufficiency of the evidence to sustain the verdict is assigned as a cause. We know that the judges of the trial courts are thoroughly conscientious in the discharge of their duties, and that they have no disposition to shirk a single responsibility resting upon them; but, from a consideration of the evidence in the case at bar, and in many others of a similar character, we are led to believe that trial courts, in considering the sufficiency of the evidence to sustain the verdict, when it is presented by a motion for a new trial, frequently apply the rule which governs courts of appeal, instead of the cor

[10] A signal or direction given by the watchman at a railroad crossing, directing a traveler on the highway to cross, is an affirmative assurance that there is no danger. A person acting under such an assurance is not required to exercise the high degree of diligence and caution that would be otherwise required of him in approaching a crossing. Lake Erie, etc., R. Co. v. Fike, 35 Ind. App. 554, 74 N. E. 636; Alabama, etc., R. Co. v. Anderson, 109 Ala. 299, 19 South. 516. If the jury believed the testimony of the plaintiff, and further believed, that, in view of the assurance of safety given by the watch-rect rule as heretofore stated. man, he used such care as was reasonable in a person of his age and experience, it was justified in finding that he was free from

If, as contended by appellant, the verdict in this case is against the overwhelming preponderance of the evidence, it should have

the trial judge alone had power to determine | pellee's passenger trains, and alleged unlawthat question. He was in a position to consider the credibility of the witnesses and to weigh their testimony; and he is presumed to have done so, and to have been satisfied with the result. If he made a mistake in this respect, this court is without power to correct it.

The judgment is affirmed.
Judgment affirmed.

NEWSOM v. CHICAGO & E. I. R. CO. (No. 7,838.)

ful arrest and imprisonment. The complaint was in two paragraphs, to each of which a demurrer was overruled. Answer in general denial. Trial, finding, and judgment for appellee. Appellant's motion for a new trial was overruled, and this ruling is the only error assigned.

[1] The reasons for a new trial are: (1) The verdict of the jury is contrary to law. (2) The verdict of the jury is contrary to the evidence. (3) The verdict of the jury is contrary to the law and the evidence. (4) The court erred in giving to the jury, “of its own motion," instructions Nos. 10 and

(Appellate Court of Indiana, Division No. 1. 14, and in refusing to give appellant's in

March 5, 1913.)

1. APPEAL AND ERROR (§ 671*)-RECORD-EVIDENCE-VERDICT.

Where the evidence was not in the record, objections that the verdict was contrary to the law and evidence could not be reviewed.

structions Nos. 12 and 13. The evidence not being in the record, the first three reasons, if they were technically correct, which is doubtful, cannot be considered by this court. It is earnestly argued by appellee that no assignment of error is attached to the record in conformity with rule 4 of this court. While the manner of incorporating what pur2. APPEAL AND ERROR (§ 616*)-RECORD-IN-ports to be an assignment of errors in the STRUCTIONS-SIGNATURE OF JUDGE.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. § 671.*]

Under Burns' Ann. St. 1908, § 560, providing that it shall be sufficient to write on the margin of each instruction, "Refused and excepted to," or, "Given and excepted to," which memorandum shall be signed by the judge and dated, instructions copied into the record with marginal notes indicating certain instructions as "given" and others as "refused," none of which notes were signed by the judge, and the judge's signature not appearing at the end of the instructions, were not properly a part of the record.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2714-2718; Dec. Dig. 8 616.*]

record is subject to criticism, we do not de cide its sufficiency in this case.

The other reasons in support of appellant's motion for a new trial go to the alleged error of the court in giving and refusing to give certain instructions.

[2, 3] It is very earnestly insisted by ap pellee that the instructions are not properly in the record; therefore no question is presented. Upon this point we direct attention to the record. On pages 19 to 21 of the record are to be found 12 instructions signed by attorneys for appellee with marginal notes 3. APPEAL AND ERROR (§ 616*)-RECORD-INSTRUCTIONS-SIGNATURE OF JUDGE. on each page as follows: "Instructions tenInstructions which were not authenticated dered by defendant,” and on page 23 a marby the trial judge, as required by Burns' Ann.ginal note, "Filing of instructions tendered St. 1908, § 561, providing that the judge shall by defendant." At the bottom of page 23 is

indicate by a signed memorandum at the close of the instructions requested what instructions are given and what refused, and shall sign the instructions given on his own motion, were not part of the record, although the instructions given and refused were indicated by unsigned marginal notes, and the judge's signature, with the date, appeared at the close of the instructions given on his own motion.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2714-2718; Dec. Dig. § 616.*]

Appeal from Circuit Court, Sullivan Coun

ty; Charles E. Henderson, Judge.

Action by Ray Q. Newsom against the Chicago & Eastern Illinois Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

a request by plaintiff that the court give certain instructions numbered 1 to 14, and that he indicate before the argument in said cause such instructions as will be given, by writing opposite each of them the words, "Given," "Given as modified by the court," or "Refused." On pages 24 to 28, inclusive, are found 14 instructions, marginal notes on each page as follows: "Instructions tendered by plaintiff"; No. 1, "Given"; No. 2,

"Refused"; No. 3, "Given"; Nos. 4, 5, 6, 7, and 8, "Refused"; No. 9, "Given"; Nos. 10, 11, 12, 13, and 14, "Refused"-none of which marginal notes are signed by the judge, nor does the judge's signature appear at the end of the instructions. Beginning on page 28, up to and including page 42, are 17 instructions, with the following marginal notes on each page, "Instructions given by court of its own motion." At the close of the instructions the following entry is made: "Dated SHEA, J. This action was brought by ap- and signed this 25th day of March, 1910. pellant against appellee to recover damages Charles E. Henderson, Judge. Filed March for his wrongful expulsion from one of ap-25, 1910. Arthur E. De Baum, Clerk." On •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

John A. Riddle and Henry Bordenet, both of Linton, for appellant. Lamb, Beasley, Douthitt & Crawford, of Terre Haute, for appellee.