{ "id": 8722104, "name": "Inabinett v. Saint Louis, Iron Mountain & Southern Railway Company", "name_abbreviation": "Inabinett v. Saint Louis, Iron Mountain & Southern Railway Co.", "decision_date": "1905-03-11", "docket_number": "", "first_page": "427", "last_page": "431", "citations": [ { "type": "official", "cite": "74 Ark. 427" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "57 Ark. 459", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1324645 ], "opinion_index": -1, "case_paths": [ "/ark/57/0459-01" ] }, { "cite": "48 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1887717 ], "pin_cites": [ { "page": "60" } ], "opinion_index": -1, "case_paths": [ "/ark/48/0045-01" ] }, { "cite": "36 Ark. 495", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "37 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871004 ], "pin_cites": [ { "page": "471" } ], "opinion_index": -1, "case_paths": [ "/ark/37/0117-01" ] }, { "cite": "71 Ark. 83", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "48 Mo. 376", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8851816 ], "opinion_index": 0, "case_paths": [ "/mo/48/0376-01" ] }, { "cite": "30 Ohio St. 104", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 897451 ], "opinion_index": 0, "case_paths": [ "/ohio-st/30/0104-01" ] } ], "analysis": { "cardinality": 400, "char_count": 7694, "ocr_confidence": 0.73, "pagerank": { "raw": 8.348508464014544e-08, "percentile": 0.48111530826700705 }, "sha256": "c1bab35119c07a3750ad922c881790396646f9538cdf1eaf7efcc607f1ff9f9d", "simhash": "1:b7ac919dd6d5a301", "word_count": 1358 }, "last_updated": "2023-07-14T20:33:00.876147+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JOUR D. Conway, Judge." ], "parties": [ "Inabinett v. Saint Louis, Iron Mountain & Southern Railway Company." ], "opinions": [ { "text": "Battue, J.\nThis action was brought by Jnabinett against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries to him alleged to have been caused by the negligence of the defendant in allowing ste?m to escape from the steam cocks of its engine while plaintiff was approaching, in his buggy, a public crossing in the city of Texarkana.\nThe defendant denied all the material allegations in plaintiff\u2019s complaint, and alleged that the plaintiff was guilty of contributory negligence. The jury returned a verdict in favor of the plaintiff for one dollar, and the court rendered judgment accordingly. The plaintiff moved for a new trial on the following grounds: \u201c(1.) because the verdict is contrary to the law; (2.) because the verdict is contrary to the evidence; (3.) because the-amount of damages assessed by the jury is too small and wholly inadequate to compensate the plaintiff for the injury and pecuniary loss and damages sustained by him; (4.) because the verdict of the jury was rendered under a disregard of the plaintiff\u2019s right, and is arbitrary and unwarranted under the law.\u201d\nThe court overruled the motion, and he appealed. This is the second appeal in this case to this court. The evidence adduced in the second trial is not set out in the bill of exceptions in this case; only the substance is given. It was set out in the following manner:\n\u201cJ- A. Inabinett testified in his own behalf, which is, in substance, the same as his evidence set out in full in the bill of exceptions, made a part of the record of the first appeal, and, which tended to show that his horse became frightened at the blowing of a whistle,\u201d, etc. * * * \u201cReference is made to his former evidence on said appeal, and made a part of this bill of exceptions, same as if copied in full.\u201d \u201cExcept, however, the plaintiff further testified that since' the first trial he had made a trip to Nashville, Tenn., to take a course of electrical treatment for his injuries, which cost him $300, and had made another trip to Bonham, Texas, at a further cost of $300, which improved his condition, and his general health was better than at the former trial, although he had not recovered from his injuries.\u201d\nJ. E. Young, also orally examined on this trial, is referred to as follows:\n\u201cJ. E. Yoking testified substantially the same as in the former trial. His evidence is set out in full in the bill of exceptions, made a part of this record on the first appeal which tended to prove that plaintiff\u2019s horse took fright by the blowing of a whistle,\u201d etc.\nJ. R. Inabinett is also referred to as having \u201ctestified substantially the same as on the former trial, whose evidence is copied in full in the bil of exceptions on the first appeal, is referred to and taken as his evidence in full for the purposes of this appeal, and which tended to show the nature and extent of plaintiff\u2019s injuries, and the extent and value of plaintiff\u2019s practice as a physician.\u201d\nJ. A. Matthews, a witness for plaintiff, stated as follows:\n\u201cJ. A. Matthews, whose testimony was not had in the first trial, but produced in this trial, and whose evidence tended to corroborate the evidence of the plaintiff, and tended to prove that the plaintiff\u2019s hprse became frightened at the escape of steam of an engine near the public crossing aforesaid, which caused the horse to take fright and-throw the plaintiff from his buggy.\u201d\nH. R. Webster is referred to as having testified \u201csubstantially as he. did on the former trial, except that this witness further testified that he found the condition of plaintiff somewhat improved since the last trial, and his evidence tended to prove the extent of the injuries of the plaintiff, and that he would never entirely recover therefrom.\u201d\nThe record then goes on to say:\n\u201cIn addition to the evidence introduced by the plaintiff on the first trial, he offered the testimony of the following witnesses: Dr. P. H. Chandler, W. D. Williams, J. T. Roberts, Amos Martin and W. T. Hamilton, whose testimony tended to prove the standing of the plaintiff as a physician, and the extent of his practice at the time he received the injuries complained of.\u201d\nA. B. Matson was also orally examined, and is referred to as having \u201ctestified as to the location of the tracks of the defendant with said public crossing, and who made and verified a drawing or diagram of said tracks at said crossing, which diagram is omitted, because immaterial to. the question presented on this appeal \u201d\nThe appellant complains because the verdict is contrary to the evidence, and \u201cbecause the amount of damages assessed by the jury is too small and wholly inadequate to compensate the appellant for the injury and pecuniary loss and damages sustained by him.\u201d In order to show the errors complained of and set out in his motion for a new trial, all the evidence adduced at the trial should be set out in his bill of exceptions. It is not sufficient to give the substance of it. What was the substance of it can be determined only by the evidence. \u201cThe opinion of the jury and of this court might differ widely from that of the parties or the courts below as to what was the substance of the witnesses\u2019 testimony.\u201d What is set up as the evidence in the case must be shown to be all the evidence, and not the \u201csubstance\u201d of it, before it can become the duty of this court to decide the question of its sufficiency to support the verdict. Unless it does so, the presumption is that it is sufficient to sustain the verdict. Gulf, C. & S. F. R. Co. v. Washington, 49 Red. Rep. 347, 353; P., Ft. W. & C. Railway v. Probst, 30 Ohio St. 104; Blankenship v. North Missouri Railroad Co., 48 Mo. 376.\nBut we are told that the rules of this court say that \u201cwhen a cause has once been before this court, and a transcript is again called for, to have error which occurred after its return corrected, the second transcript shall begin where the former ended, that is, with the judgment of this court.\u201d The object of this rule is to avoid the tim\u00e9, labor and expense of copying and sending to this court that which is already here. It is not applicable to a new trial. It does not follow that the same witnesses will testify in the second trial that did in the first, or that the same witnesses will testify as they did before. Time may cause them to forget, and new circumstances may refresh their memories. Hence if the verdict of the jury or the findings of fact by a court sitting as a jury are questioned, the bill of exceptions in the second appeal should contain all the evidence adduced at the second trial.\nJudgment affirmed.", "type": "majority", "author": "Battue, J." } ], "attorneys": [ "L. A. Byrne, for appellant.", "B. S. Johnson, for appellant." ], "corrections": "", "head_matter": "Inabinett v. Saint Louis, Iron Mountain & Southern Railway Company.\nOpinion delivered March 11, 1905.\n1. Appeal \u2014 bringing up the evidence \u2014 The Supreme Court will not consider the deficiency of the evidence where the bill of exceptions purports to give merely the substance of the evidence. (Page 430.)\n2. Second appeal \u2014 bill of exceptions. \u2014 Though Rule XIV provides that \u201cwhen a cause has once been before this court, and a transcript is again called for to have error which occurred after its return corrected, the second transcript shall begin where the former ended;, that is, .with the judgment of this court,\u201d if the verdict of the jury or findings of fact of the court be questioned, the bill of exceptions in the second appeal should contain all the evidence adduced at the second trial. (Page 431.)\nAppeal from Nevada Circuit Court.\nJOUR D. Conway, Judge.\nAffirmed.\nL. A. Byrne, for appellant.\nB. S. Johnson, for appellant.\nThe bill of- exceptions presents no fact for consideration of \u25a0this court. 71 Ark. 83; 37 Ark. 117, 471; 36 Ark. 495; 48 Ark. 45, 60; 57 Ark. 459." }, "file_name": "0427-01", "first_page_order": 448, "last_page_order": 452 }