
    No. 857.
    The Chicago and Erie Railroad Company v. Olsen.
    From the Lake Circuit Court.
    O. Gresham and J. W. Youche, for appellant.
    
      R. Gregory, for appellee.
   Reinhard, J.

The facts in this case and the legal principles to be applied to them are, in all essential particulars, like those in the case of Chicago, etc., R. R. Co. v. Field, 7 Ind. App. 172. That case was reversed upon the special verdict of the jury.

In the present case, there was no special verdict, but the evidence is in the record and does not make any stronger case for the appellee than the special verdict in the case cited.

The appellant’s motion for a new trial in this case was grounded upon the cause, in part, that the evidence was insufficient to sustain the verdict. The overruling of that motion is one of the errors assigned. We think the motion should have been sustained.

There is this difference in the facts of the two cases: that in the case at bar the appellee was not compelled, as he avers in his complaint, to walk to Hammond, but he admits that he re-entered the train and was carried upon it to said place, and this was the uncontradicted evidence.

The only shadow of a cause of action upon which he could recover, therefore, is that the conductor compelled him to leave the train for a moment or two. After this he re-entered and rode to Hammond. If his contract of carriage was valid, he got the full benefit of it.

Filed June 20, 1893.

The theory of his complaint is the failure of the appellant to carry him according to contract.

He can recover upon no other theory.

Judgment reversed, with instructions to the lower court to grant the appellant a new trial.  