#10763

Shelby Circuit Court
October Term, 1915


Francis  M.  Ellsbury
vs.
The Terre Haute, Indianapolis & Eastern Traction Company

Defendantís Bill of Exceptions #1

filed Dec. 14, 1915
Cecil B. Collins,
Clerk Shelby Circuit Court

STATE  OF  INDIANA             X   SHELBY  CIRCUIT  COURT
SHELBY  COUNTY                 X   OCTOBER  TERM,  1915.

FRANCIS M. ELLSBURY         X
                                             X
             VS.                           X    No. 10763
THE TERRE HAUTE,              X    DEFENDANTíS BILL OF
INDIANAPOLIS & EASTERN   X    EXCEPTIONS
TRACTION COMPANY.          X


          Be it remembered in the above entitled cause that before the argument in the same began, the defendant in writing requested the Court to instruct the jury in writing, to number an signed the instructions, to give to the jury each of certain instructions numbered consecutively from one to eighteen inclusive, requested by the defendant, and to indicate before argument the instructions that would be given, and said request was signed by counsel for the defendant and is in the words and figures following, to-wit: (here insert)

          And be it further remembered that said instructions so tendered from one to eighteen inclusive were in writing and were numbered consecutively and were signed by counsel for the defendant, and be it further remembered that of said instructions the court refused to give to the jury those numbered 1, 2, 3, 5, 6, 9, 10, 12, 14, and 15, and which instructions are in the words and figures following, to-wit: (here insert)

          And be it also remembered that when the Court refused to give each of said instructions, the defendant did at the time except to his refusal to give to the jury each of said instructions.

          And be it further remembered that the Court gave to the jury of its own motion certain instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 17, 19, 24, 28, 30, 31, and 32, and which instructions are in the words and figures following, to-wit: (here insert).

          And be it further remembered at the time the Court so gave said instructions to the jury, the defendant excepted to the giving of each of said instructions. And be it further remembered that the Court, at the request of the plaintiff, gave to the jury certain instructions numbered 18, 20, 25, and 29, and which instructions are in the words and figures, following, to-wit: (here insert)

          And be it further remembered that the defendant at the time the Court gave such instructions excepted to the giving of each of the same.

          And be it further remembered that the Court gave to the jury at the request of the defendant certain instructions numbered as follows: 13, 14, 16, 21, 22, 23, 26, and 27, and which instructions correspond to and are instructions numbered 4, 17, 7, 13, 8, 11, 18, and 16, requested by the defendant.

          And be it further remembered that said instructions so given by the Court of its own motion, and said instructions so given by the Court at the request of the plaintiff, and said instructions so given by the Court at the request of the plaintiff, and said instructions so given by the Court at the request of the defendant, were all the instructions given in said cause.

And now on this 14th day of December, 1915, the same being the 62nd juridical day of said term of said court, the defendant presents to the judge of said court, in open court, this its bill of exceptions number one, and asks that the same be signed, sealed and made a part of the record in said cause, which is accordingly done, this 14th day of December, 1915.

Signed: Alonzo Blair,
Judge Shelby Circuit Court

~~~~~~~~~~~~~~~~~~~~~~~~~~

Filed Dec. 3, 1915
Cecil B. Collins,
Clerk Shelby Circuit Court

STATE  OF  INDIANA,   X   SHELBY  CIRCUIT  COURT
SHELBY  COUNTY        X   OCTOBER  TERM,  1915


FRANCIS  N.  ELLSBURY
                   vs.
THE  TERRE  HAUTE,  INDIANAPOLIS  &  EASTERN  TRACTION  CO.

          In the above entitled cause, the defendant before the argument begins, asks the Court to instruct the jury, in writing, to number and sign the instructions to give tot he jury each of the following instructions, from one to eighteen inclusive, and to indicate before argument the instructions that will be given.

No. 1
          The burden of proving that the negligence of defendant, as alleged in the complaint, was the proximate cause of the injury, of which the plaintiff complains, is upon the plaintiff and unless such negligence has been proven by a preponderance of the evidence relating thereto, then your verdict must be for the defendant.

(stamped) Requested defendant and refused.

No. 2
          The defendant had the right to run its cars over its road, whenever it pleased so to do.

(stamped) Requested deft. and refused.

No. 3
          If you find that the defendantís car struck the wagon upon which the plaintiff was riding and by reason thereof, he was injured, you can not infer, or assume, because he was injured that there should be a verdict for the plaintiff, nor does any presumption arise from the fact that plaintiff was injured that the defendant was guilty of negligence contributing to the that injury.

(stamped) Requested deft. and refused.

(no #4)

No. 5
          While the plaintiff had the right, if he was travelling on a public highway that crossed the defendant track, to use said highway at that place, the defendant also had the right to run its cars over said highway at that place and the right of the defendant so to cross the highway at that place was superior to the right of the plaintiff; that is, if the plaintiff desired to cross the defendantís track at the place where the public highway crossed the same, at the same time that the defendant desired to run its car over its track and to cross the highway at that place, it was the duty of the plaintiff, if he could not cross the defendantís track in safety, to wait until the defendantís car passed along its track over the highway at the point where the plaintiff wished
to travel over the same where it crossed the defendantís track.

144 Ind. 323, 327.

(stamped) Requested deft. and refused.

No. 6
          At all times since the defendant has been operating cars upon its road, it has been a common carrier of passengers and it was its duty to transport them from place to place as expeditiously as possible, consistent with the demands of travel and business and with the safety of such passengers and the public.

(stamped) Requested deft. and refused.

(no. #7 or 8)

No. 9
          I instruct you that the presence of railroad tracks is a warning of danger, and places the duty on a person about to cross the same to use his eyes and ears to learn that the crossing is safe, and that this duty is not performed by such person by looking from the point where the view is obstructed, but the duty is a continuous one, and must be performed at any point from which the presence of cars might have been detected, and if you find from the evidence in this case that the plaintiff failed to perform this duty before attempting to cross the tracks with his team and wagon, and you further find that by performing such duty he could have seen the danger in time to have avoided it, such failure on the part of plaintiff would be contributory negligence, and he could not recover in this action, and this would be true even though you find that the defendant negligently failed to give proper warning of the approach of its car, and was negligent as to the speed thereof.

(stamped) Requested deft. and refused.


No. 10
          If you find from the evidence in this case that the plaintiff drove upon the track of the defendant company at the time and place in question in such close proximity to the car that a collision was unavoidable, and you further find that if he had looked with care proportionate to his surroundings he could have seen and avoided said car, than he cannot recover for any injuries received because of being struck by said car upon said tracks.

(stamped)   Requested deft. and refused.

(no #11)

No. 12
          I instruct you that if you find from the evidence in this case that the plaintiff saw the interurban car approaching, and you further find that plaintiff believed that he had time to cross over said tracks, and in front of said car, and attempted to do so, but that he misjudged his ability so to do, and because thereof said car struck the wagon upon which he was riding, and injured plaintiff, he cannot recover for such injuries.

(stamped)   Requested deft. and refused.


(no. #13)

No. 14
          I instruct you that any negligence on the part of the plaintiff which proximately contributed to the injury complained of would preclude his recovery in this action, even though you should find the defendant was guilty of the acts of negligence charged in the complaint.

(stamped) Requested deft. and refused.


No. 15
          I instruct you that there is no such thing known to the law in this State as comparative negligence, so if you should find that the defendant and the plaintiff were both guilty of negligence proximately causing the injuries complied of, you will not stop to inquire which was the more negligent, for if both were negligent, and the plaintiffís negligence was only slight, and the negligence of both proximately resulted in plaintiffís injury your verdict should be for the defendant.

(stamped) Requested deft. and refused.
          The defendant excepts to the refusal of the Court to give to the jury each of the above instructions requested by the defendant and numbered as follows: 1, 2, 3, 5, 6, 9, 10, 12, 14, & 15. This the 13th day of Dec. , 1915. Signed: Frances E. Glasscock,
D. E. Watson,
Isaac Carter,
                                   Hood & Adams, attys. for defendant

~~~~~~~~~~~~~~~~~~~~~~~~~

Filed Dec. 3, 1915
Cecil B. Collins,
Clerk Shelby Circuit Court

STATE  OF  INDIANA,   X   SHELBY  CIRCUIT  COURT
SHELBY  COUNTY        X   OCTOBER TERM,  1915


FRANCIS  N.  ELLSBURY
                   vs.
THE  TERRE  HAUTE,  INDIANAPOLIS  &  EASTERN  TRACTION  CO.

   In the above entitled cause, the defendant before the argument begins, asks the Court to instruct the jury, in writing, to number and sign the instructions to give tot he jury each of the following instructions, from one to eighteen inclusive, and to indicate before argument the instructions that will be given.

No. 1
          The burden of proving that the negligence of defendant, as alleged in the complaint, was the proximate cause of the injury, of which the plaintiff complains, is upon the plaintiff and unless such negligence has been proven by a preponderance of the evidence relating thereto, then your verdict must be for e the defendant.

(stamped)   Requested defendant and refused.

No. 2
          The defendant had the right to run its cars over its road, whenever it pleased so to do.

(stamped) Requested deft. and refused.

No. 3
          If you find that the defendantís car struck the wagon upon which the plaintiff was riding and by reason thereof, he was injured, you can not infer, or assume, because he was injured that there should be a verdict for the plaintiff, nor does any presumption arise from the fact that plaintiff was injured that the defendant was guilty of negligence contributing to the that injury.

(stamped) Requested deft. and refused.

(no #4)

No. 5
          While the plaintiff had the right, if he was travelling on a public highway that crossed the defendant track, to use said highway at that place, the defendant also had the right to run its cars over said highway at that place and the right of the defendant so to cross the highway at that place was superior to the right of the plaintiff; that is, if the plaintiff desired to cross the defendantís track at the place where the public highway crossed the same, at the same time that the defendant desired to run its car over its track and to cross the highway at that place, it was the duty of the plaintiff, if he could not cross the defendantís track in safety, to wait until the defendantís car passed along its track over the highway at the point where the plaintiff wished
to travel over the same where it crossed the defendantís track.

144 Ind. 323, 327.
(stamped) Requested deft. and refused.

No. 6
          At all times since the defendant has been operating cars upon its road, it has been a common carrier of passengers and it was its duty to transport them from place to place as expeditiously as possible, consistent with the demands of travel and business and with the safety of such passengers and the public.

(stamped) Requested deft. and refused.


(no. #7 or 8)

No. 9
          I instruct you that the presence of railroad tracks is a warning of danger, and places the duty on a person about to cross the same to use his eyes and ears to learn that the crossing is safe, and that this duty is not performed by such person by looking from the point where the view is obstructed, but the duty is a continuous one, and must be performed at any point from which the presence of cars might have been detected, and if you find from the evidence in this case that the plaintiff failed to perform this duty before attempting to cross the tracks with his team and wagon, and you further find that by performing such duty he could have seen the danger in time to have avoided it, such failure on the part of plaintiff would be contributory negligence, and he could not recover in this action, and this would be true even though you find that the defendant negligently failed to give proper warning of the approach of its car, and was negligent as to the speed thereof.

(stamped)   Requested deft. and refused.

No. 10
          If you find from the evidence in this case that the plaintiff drove upon the track of the defendant company at the time and place in question in such close proximity to the car that a collision was unavoidable, and you further find that if he had looked with care proportionate to his surroundings he could have seen and avoided said car, than he cannot recover for any injuries received because of being struck by said car upon said tracks.

(stamped)   Requested deft. and refused.

(no #11)

No. 12
          I instruct you that if you find from the evidence in this case that the plaintiff saw the interurban car approaching, and you further find that plaintiff believed that he had time to cross over said tracks, and in front of said car, and attempted to do so, but that he misjudged his ability so to do, and because thereof said car struck the wagon upon which he was riding, and injured plaintiff, he cannot recover for such injuries.

(stamped) Requested deft. and refused.

(no. #13)

No. 14
          I instruct you that any negligence on the part of the plaintiff which proximately contributed to the injury complained of would preclude his recovery in this action, even though you should find the defendant was guilty of the acts of negligence charged in the complaint.

(stamped)   Requested deft. and refused.

No. 15
          I instruct you that there is no such thing known to the law in this State as comparative negligence, so if you should find that the defendant and the plaintiff were both guilty of negligence proximately causing the injuries complied of, you will not stop to inquire which was the more negligent, for if both were negligent, and the plaintiffís negligence was only slight, and the negligence of both proximately resulted in plaintiffís injury your verdict should be for the defendant.

(stamped) Requested deft. and refused.

          The defendant excepts to the refusal of the Court to give to the jury each of the above instructions requested by the defendant and numbered as follows: 1, 2, 3, 5, 6, 9, 10, 12, 14, & 15. This the 13th day of Dec. , 1915.

Signed:  Frances E. Glasscock,
D. E. Watson,
Isaac Carter,
                                    Hood & Adams, attys. for defendant

Transcribed by Melinda Moore Weaver.

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