Craig v. Zent , 52 Ind. App. 19 ( 1912 )

Lairy, J.

Appellants, who are the owners of a machine for drilling wells, left it standing by the side of the highway. This action was brought by appellee to recover damages for personal injuries, and also damages to his horse and buggy occasioned by his horse taking fright at the machine and running away. Appellee recovered a judgment in the sum of $100, from which judgment this appeal is prosecuted.

The action of the trial court in overruling appellants’ motion for a new trial is the only one presented by the briefs.

1. The first question discussed by appellants relates to the sufficiency of the -evidence to sustain the verdict. On this question it is asserted that the undisputed evidence shows a state of facts from which the court can say, as a matter of law, that appellee was guilty of contributory negligence in attempting to drive his horse past the machine, after he saw it at the side of the road. A court is not justified in declaring as a matter of law that a party was negligent, simply because the facts relating to his conduct are undisputed and seem to indicate a want of due care. If different inferences may reasonably be drawn from the undisputed facts, it is the province of the jury to draw the inference, and thus to determine whether the party was guilty of negligence. We have carefully examined all of the evidence relating to the conduct of appellee, and we are clearly of the opinion that the question of contributory negligence was one of fact for the jury.

Appellants cite and rely on the case of Town of Salem v. Walker (1897), 16 Ind. App. 687, 46 N. E. 90, but the facts as disclosed by the evidence in this case do not bring it within the rule announced in that decision.

2. 3. Appellants next complain of the ruling of the court in permitting the plaintiff to testify to a statement made to him by Mr. Bowers, at the law office of Bowers & Feightner, in the absence of defendants. While plaintiff was testifying as a witness in his own behalf, he stated on reexamination, in response to a question propounded by his attorney, that Mr. Bowers said in this conversation that plaintiff ought to have $100 damages for his horse. Ordinarily a statement of this kind would be inadmissible as evidence against the defendants. It is claimed by counsel for plaintiff that the admission of this evidence was justified, on the ground that defendants in cross-examination went into the transaction and developed a part of what was done and said, and that it was proper on further examination to show the rest of what was said on the same subject. Defendants’ attorney on the cross-examination of this witness did not ask him to relate anything that was said at the time this list was made out. The cross-examination shows that some conversation was had on the. subject of damages to the other personal property mentioned, and that a list was made out which did not include damages to the horse. It also shows that Mr. Bowers estimated the damages to the property mentioned in the list, and that plaintiff, at the time, mentioned the damage to the horse. The witness was not asked on cross-examination to relate any part of the conversation, and he did not state anything that was said, except that he mentioned to Mr. Bowers that the horse was damaged, and this statement was volunteered by the witness, not being _ responsive to the question. Under such a state of the evidence, we do not think that it was competent on reexamination to show what was said as to the amount of plaintiff’s damages. But in this ease it appears that Mr. Bowers was appearing at the trial of the ease as one of the attorneys for defendants, and as such conducted the examination of plaintiff. In this examination he elicited the fact that a list of the property damaged was made out, in which damage to the horse was not mentioned. Plaintiff on cross-examination, in response to a question by Mr. Bowers, testified that Bowers made out this list and estimated the damages; and that plaintiff at the time mentioned the damage to the horse. Prom this cross-examination it appears that the damages to various articles of personal property were discussed, and that Bowers made out a list and estimated the damages to the other articles, but did not include the damage to the horse, although it was mentioned by plaintiff. Defendants having gone into this transaction, and having developed a part of what was done and said there, the court did not err in permitting’ plaintiff, on reexamination, to show what was further said in relation to the same subject. The error, however, is not available to reverse the judgment, for the reason that a timely objection was not made to the question which elicited the testimony. As shown by the record, defendants made no objection at the time the question was asked, but waited until the answer had been given, and then objected. The question was of such a character as to indicate that its answer would divulge at least a part of the conversation had between plaintiff and Mr. Bowers. If the evidence thus sought to be elicited was incompetent, defendants might object, and have the evidence excluded, or they might waive the objection and permit it to go in; but they cannot wait until after the answer is made, and then permit it to remain if favorable, or, by objecting, have it excluded if unfavorable. Pence v. Waugh (1893), 135 Ind. 143, 34 N. E. 860; Pennsylvania Co. v. Witte (1896), 15 Ind. App. 583, 43 N. E. 319, 44 N. E. 377.

4. Appellants also contend that the 'damages are excessive. On this question we may remark that the evidence shows injuries to the person of appellee, which, though slight, are not capable of being definitely ascertained, and as the damages assessed are only $100, we do not regard them as excessive.

Judgment affirmed.

Note. — Reported in 100 N. E. 94. See, also, under (1) 29 Cyc. 631; (2) 40 Cyc. 2526; (3) 38 Cyc. 1890; (4) 3 Cyc. 381.