
    No. 7230.
    The Pittsburgh, Cincinnati and St. Louis R. R. Co. v. Williams.
    
      Negligence. — Presumption.—Railroad Company. — Damages.—Where, in an action against a railroad company for damages for a personal injury .caused by the alleged negligence of such company, the fact has been established that the plaintiff, while a passenger in the railroad car of the defendant, was injured, without his fault, by the car in which he was riding being thrown from the track and upset, the law will presume negligence on the part of such company, unless the contrary is shown by the evidence.
    
      Same. — Accident from Broken Rail. — Evidence.—In such case, it is not sufficient for the defendant to show that the car was thrown from the track by reason of the breaking of a rail, sufficient in size and free from all defects, but it must also show that such broken rail had been properly laid down and spiked on sound and sufficient cross-ties.
    
      Same. — Instructions. — Sufficiency of Cars. — Duty of Common Carrier of Passengers. — It is not error to refuse to instruct the jury in such case, that the company has performed its full duty as a common carrier of passengers, when it has furnished for their carriage a car or caboose which will run with safety while upon its road, but will be unable to resist the crash when thrown from its track.
    
      'Same. — Defeats at Points of Road Other than Where Accident Occurred. — It was not error to instruct the jury in such case that proof of defects at other points in the road would not make a case of negligence at the place of the accident, nor render the defendant liable for the injury to the plaintiff, unless it was further shown that such defective condition caused or materially contributed to the accident.
    
      
      Practice. — Answer of Jury to Interrogatory. — Where the jury were unable, from the evidence, to give the “hour and minute” at which the accident occurred, but returned in answer to a question as to such fact submitted to them, that,“Prom the nature of the question, we can not so positively answer,” the court did right in accepting such answer, and discharging the jury from the further consideration of such question.
    
      Same. — Brief.—Waiver.—Supreme Court. — Error which is not pointed out or discussed in the brief of the party assigning it will be regarded as waived by the Supreme Court.
    
      Same. — New Trial. — Questions arising under reasons assigned for a new trial, not discussed by counsel in the Supreme Court, will be regarded as waived.
    From tbe Morgan Circuit Court.
    
      S. Claypool, H. C. Newcomb, W. A. Ketcham, G. W. Grubbs, M. H. Parks and F. P. A. Phelps, for appellant.
    
      B. Harrison, C. C. Hines and W. H. H. Miller, for appellee.
   Howk, C. J.

In this action the appellee sued the appellant to recover damages for personal injuries, which he alleged that he had sustained, without fault on his part, while being carried as a passenger in the cars and on the railroad of the appellant, by and through the carelessness and negligence of its servants and agents.

The case having been put at issue was tried by a jury, and a verdict was returned for the appellee, assessing his damages in the sum of seven thousand five hundred dollars; and the appellant’s motion for a new trial having been overruled, and its exception saved to this ruling, judgment was rendered on the verdict, from which said judgment this appeal is now here prosecuted.

All the questions presented for the decision of this court, In this case, arise under the alleged error of the circuit court, In overruling the appellant’s motion for a new trial. In this motion, thirty-two alleged causes for such new trial, consisting chiefly of supposed errors of law, occurring at the trial and excepted to, were assigned by the appellant; but, as many of these causes have not been even alluded to by its counsel in argument, we deem it unnecessary and unprofitable for us to set them out in this opinion. We will consider and decide such questions only as the appellant’s counsel have presented and discussed in their able and exhaustive brief of this cause, and as have been properly saved in and by the record before us, in the order adopted by counsel. It is insisted by the appellant’s attorneys, in argument, that the court erred in its sixth instruction to the jury-trying the cause, which instruction reads as follows :

“6. When the fact has been established that a passenger in a railroad car has been injured, without, his fault, by the car in which he was riding being thrown from the track and upset, the law will presume negligence on the part of the railroad company, unless the evidence shows there was not.”

It is claimed by the appellant’s counsel that the doctrine of this instruction is now exploded, but we fail to see the matter in the light in which counsel have sought to present it. Indeed, it seems to us that the doctrine of the instruction is good law, and, as such, it has been approved and sanctioned by this court in several of its decisions. Thus, in the case of The Jeffersonville R. R. Co. v. Hendricks’ Adm’r, 26 Ind. 228, in speaking of the ruling sometimes declared, that the fact that injury is suffered by a passenger while upon the company’s train is prima facie evidence of the company’s liability, it was said by this court, that “Ordinarily such fact should be regarded, at least, as prima facie evidence of negligence on the part of the company.” This is substantially the doctrine of the instruction complained of, and, so far as we are advised, its correctness has never been doubted or questioned by this court. Sherlock v. Alling, 44 Ind. 184. In some respects the case at bar is similar to the case of Edgerton v. The New York, etc., R. R. Co., 39 N. Y. 227, decided by the Court of Appeals of New York, in 1868. In the case cited, the court said: “The evidence showed, that the car in which the plaintiff was riding, in part ran off the track, and was broken, by means of which the plaintiff was injured. This was prima facie evidence of negligence of the defendant. The latter not only had the entire control of the vehicle, but also of the track upon which it was run, and it owed a duty to the plaintiff to keep both in a perfect and safe condition for the transportation of passengers with entire safety, so far as human prudence can accomplish these results. Experience proves that, when the track and machinery are in this condition, and prudently operated, the trains will keep upon the track, and run thereon with entire safety to those on board. Whenever a car or train leaves the track, it proves, that either the track or machinery, or some other portion thereof, is not in a proper condition, or that the machinery is not properly operated, and presumptively proves, that the defendant, whose duty it is to keep the track and machinery in the proper condition, and to operate it with the necessary prudence and care, has, in some respect, violated this duty. It is true, that a bad state of the track or machinery may have resulted from the wrongful act of persons for whose conduct the defendant is not responsible, and the injury to the passenger may have resulted therefrom, and, in such a case, the company is not responsible, but such cases are extraordinary, and those guilty of perpetrating such acts are highly criminal; and, therefore, there is no presumption of the perpetration of such acts by others, and the company, if excusable upon this ground, must prove the facts establishing such excuse.”

The doctrine of the instruction under consideration has. been approved by the courts of last resort in divers other States, and by the Supreme Court of the United States. Pittsburg, etc., R. W. Co. v. Thompson, 56 Ill. 138; Sullivan v. Philadelphia, etc., R. R. Co., 30 Pa. St. 234; Baltimore, etc., R. R. Co. v. Worthington, 21 Md. 275; Yonge v. Kinney, 28 Ga. 1; Zemp v. W. & M. R. R. Co., 9 Rich. 84; New Orleans, etc., R. R. Co. v. Allbritton, 38 Miss. 242; Higgins v. Hannibal, etc., R. R. Co., 36 Mo. 418; Stokes v. Saltonstall, 13 Peters, 181. We are of the opinion that the court did not err in its sixth instruction to the jury trying the cause.

The appellant’s counsel claim that the court erred in its refusal to give the jury the third instruction asked by the appellant, which reads as follows :

“3. The plaintiff having shown that the car was thrown from the track and road, and that he received an injury therefrom, this makes a prima facie case in favor of the plaintiff; but if the defendant has shown that the car was thrown off by reason of the breaking of a rail, sufficient in size and free from all defects, then the plaintiff can not recover without showing, by the preponderance of the evidence, that the break resulted from some defect in the construction and repair of the road or the machinery, or from negligence in operating the train, or from one or more or all of these causes.”

In discussing this supposed error, it is conceded by the appellant’s counsel, “that the main controversy between the parties was as to the cause of the breaking of the rail. The plaintiff claimed that the rail broke for want of sufficient support, the ties under the rail being rotten, and the rails not being well spiked down, etc. On the other hand, the defendant claimed that the ties under the rail were, good, and the rail properly spiked, and the like, and the break was caused by the action of the frost alone. ***** To say the least, on this issue there was a strong conflict of evidence.” Under this view of the state of the evidence, which is certainly as favorable for the appellant as its learned counsel could make it, we are of the opinion that the court committed no error in its refusal to give the third instruction, above quoted, at the appellant’s request. In the case as stated in said instruction, it was not sufficient, we think, for the appellant to show that the broken rail was “sufficient in size and free from all defects but, in order to relieve itself of the burthen of the issue in the case as stated, it was necessary that the appellant should have gone further, and have Shown that such broken rail had been properly laid down and spiked, on sound and sufficient cross-ties.

The next point made by the appellant’s counsel in argument is, that the court erred in refusing to give the first and sixth instructions asked by the appellant. These two instructions were as follows :

“1. If the caboose in question was good and sufficient for running with safety while upon the road of the defendant, the fact that it was unable to resist the crash when thrown from the track and road does not constitute a case of negligence against the defendant, for not providing a good and sufficient car or caboose for carrying passengers.”
“6. If the road of the defendant was good and sufficient for safety, and if the car -was thrown from the road, without any carelessness or neglect of the defendant, by the breaking of a rail, or from some hidden or unavoidable cause, and if the car in which the plaintiff was riding was ■sufficient and safe for running while it remained on the road, you can not find against the defendant on the ground •that if the car had been stronger the injury might not have ■occured, or not been so severe.”

The court did not err, we think, in its refusal to give "these two instructions, or either of them, to the jury tiying the cause, It will not do to say, as a matter of law, that a railroad company has performed its full duty as a common •carrier of passengers, when it has furnished for their carriage a car or caboose, -which will run with safety while upon its road, but •will be unable to resist the crash when thrown from its track. Yet this is substantially what the court was .asked to tell the jury in each of the two instructions above quoted. The instructions do not state the law correctly,, and the court very properly refused to give them.

The appellant’s counsel next complain of the action of the-court in amending and modifying the latter part of the seventh instruction, asked by the appellant, and in giving the-instruction as amended and modified. We set out the part of said instruction, to which the complaint of counsel applies, as follows:

“For instance, if there were rotten and defective ties, defective chairs and loose spikes, at other points in the road, such facts,- if proven, would not make a case of negligence at the point of the accident, nor render the defendant liable-for the injury, unless [such defective condition was shown, at the point of the accident, and] it was further shown that such defective condition caused or materially contributed to-the accident.”.

The amendment and modification of the foregoing part of the seventh instruction by the court, consisted in striking out therefrom the words which we have enclosed within brackets, and in inserting therein the words which we have italicized, at the place where they now appear. In their brief of this cause the appellant’s counsel say that the plain and obvious meaning of- the seventh instruction, as asked, was this : ‘ ‘That the jury had no right to infer a defective condition of the road at the place of the accident, from proof' of a defective condition at other points. The instruction as given said to the jury, in effect, simply this : that proof of' defects in the road at other points would render the defendant liable, if such defects caused or contributed to the accident. This was correct, but it did not cover the point asked.” We agree with counsel, that the instruction, as amended, modified and given, was correct; and we are of the opinion that the court did not err, either in refusing to give the instruction as asked, or in amending and modifying, the same in the manner indicated, and as it was given.

Appellant’s counsel say, in their brief, that the court erred in refusing to give the second instruction asked by the defendant ; but they have failed to point out the supposed ■error therein, or to discuss any question thereby presented. 'Under the settled practice of this court, this alleged error must, therefore, be regarded as waived.

The court, at the appellant’s request, submitted to the jury trying the cause, the following question of fact:

“5. At what time (giving the hour and minute) did the wreck occur, on the 23d of March, 1877, on the road of the defendant?”

The jury first answered this question as follows : “From the evidence adduced, we can not so accurately answer.” But this answer having been objected to, the jury retired .under the direction of the court, and afterward returned this answer to the question: “From the nature of the question, we can not so positively answer.” Over the appellant’s objection, the second answer was accepted by the •court, and the jury were discharged from the further consideration of the question. It is claimed by the appellant’s •.counsel that this action of the court was erroneous, but we •can not so regard it. On this point counsel say: “Two witnesses at least' testified that the wreck occurred between 11.40 and 11.45 a. m.” It is certain, Ave think, that the jjurv could not, from the evidence of these two witnesses, give “the hour and minute” at which the Avreck occurred; .and it was the precise time to a minute, and not an approximation of the time, which the question required the jury to give in their ansAver thereto. It seems to us that each of the answers of the jury Avas,a sufficient answer to-the question submitted to them, under the evidence as stated by the .appellant’s counsel. The question was so framed that it might Avell have been understood by an accurate and liberal minded jury to require from them a direct and positive .answer .to a minute, or none at all; and as they could not, under the evidence as stated by counsel, answer to a minute, their answers were that they could not answer so accurately or so positively as the question seemed to require them to-answer. Wo have no doubt that the jury answered the-question conscientiously; and the action of the court, in discharging them from the further consideration of the question, was right and proper, as it seems to us.

The only other matter complained of by the appellant’s-counsel is mentioned in their brief in the following language :

“We further submit that a new trial should have been granted for each of the 28th, 29th, 30th and 32d reasons assigned for a new trial. But as this brief is already too long, y/e must content ourselves with simply calling the attention of the court to these reasons.” This is all that counsel have said on the question presented. Under the practice of this court, and with all proper respect for the learned counsel, we think that we must content ourselves with simply saying that the questions arising under these reasons for a new trial, if there were any such questions properly saved, must be regarded as waived.

We find no error in the record of this cause for which the. judgment below can or ought to be reversed.

The judgment is affirmed, at the appellant’s costs.

Petition for a rehearing overruled.  