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Picken and Others v. Whisler.

A demurrer was sustained to the second and third paragraphs of the answer, because of their want of sufficient facts to constitute a defense; to which the defendants excepted.

The cause was tried by the court, a jury being waived. The court found for the plaintiff, and rendered judgment in lais favor for two hundred and twelve dollars and sixteen cents. A motion for a new trial was made and overruled; and proper exceptions were taken.

ELLIOTT, C. J.-The appellants insist that the Circuit Court erred in sustaining the demurrer to the second and third paragraphs of the answer. The second paragraph is clearly bad. It is averred in the complaint, that the appellants had collected the whole amount due on the Wheatley note. The paragraph admits that Wheatley paid four hun. dred and seventy-five dollars and sixty-two cents on the note at its maturity, and relies, as a defense to the action, upon a tender of eighty-three dollars before suit, being the excess of the sum so paid, over the amount due the appellants from Haden Bowlin; but it does not deny that Wheatley had paid the whole sum due on his note before the commencement of this suit. If the appellants had collected the full amount of the note on Wheatley before this suit was commenced, the plaintiff below was entitled to recover the amount of the note sued on, and a tender of a less sum could not defeat the action. The paragraph therefore fails to answer the whole cause of action, and the demurrer to it was properly sustained.

We think the third paragraph is also bad. It attempts to show a failure of the consideration, as to a part of the note on Wheatley, by showing that it was given in part consideration for a tract of land formerly owned by Haden Bowlin, the husband of Sophia, and from whom she derived her title, which she conveyed to Wheatley by a deed of warranty, and that a judgment in the District Court of the

Picken and Others v. Whisler.

United States against Haden Bowlin, whilst he was seized of the land, became a lien thereon; and it is averred, that Wheatley, after the maturity of his note, tendered to the appellants, in full payment thereof, a receipt of the clerk of said court for one hundred and twenty dollars, the balance due on said judgment, and a tax receipt for six dollars and eighteen cents, and paid the residue of his note to them. This was probably intended as an averment that Wheatley paid one hundred and twenty dollars on the judgment against Haden Bowlin in the District Court of the United States, to discharge the lien on the land; but we cannot give the language so liberal a construction.

The money may have been paid on the judgment by Haden Bowlin, or by C. C. Bowlin, the other judgment debtor, or by Clifton R. Bowlin, the principal in the recognizance, and the receipt therefor be tendered by Wheatley to the appellants. The averment of the tender of the receipt amounts to nothing. The appellants did not sue Wheatley on the note, but took upon themselves the burden of showing that, as to the sum of one hundred and twenty dollars, Wheatley had a valid defense, and a suit would, therefore, have been unavailing. The fact that the judgment was a lien on the land, could not of itself have availed Wheatley as a defense, had he been sued on the note; he must have gone further and have shown that he had paid the judg. ment to protect his title. The paragraph under consideration contains no sufficient averment of such payment by Wheatley, and we think the court did right in sustaining the demurrer.

The defense attempted to be set up was an unnecessary one, as the issue tendered by the complaint was, that the appellants had collected the whole of the note on Wheatley, and there was no complaint of any neglect in failing to collect it; still, if the paragraph had contained the proper averment of payment by Wheatley of the one hundred and twenty dollars on the judgment against IIaden Bowlin, and had thereby shown a valid defense as to that sum, contain

Picken and Others v. Whisler.

ing as it does the allegation of a tender of the residue of the note in suit, it would have constituted a good defense to the action.

If the paragraph may be regarded as an argumentative denial that the appellants had collected the whole of the note on Wheatley, still, as another paragraph contains a direct denial of that fact, the third paragraph might have been stricken out on motion; and as the proper result was attained by the demurrer, the judgment would not be reversed for an error in the mode of its accomplishment.

One of the reasons urged for a new trial is, that the finding of the court is contrary to the evidence, and overruling the motion is assigned for error. We think the objection well taken. The case was tried on the appellants denial that they had collected the note on Wheatley. The record contains the evidence, which shows conclusively that the appellants had only received four hundred and seventy fire dollars and sixty-two cents.on the Wheatley note, and not the whole amount, as alleged in the complaint. It further shows that Wheatley paid one hundred and twenty dollars on the judgment in the District Court of the United States, and the further sum of six dollars and eighteen cents for taxes, which were a lien on the land at the time he purchased it. He paid the appellants the residue of the note, four hundred and seventy-five dollars and sixty-two cents, and claimed a set-off for the amounts so paid on the judgment againt Haden Bowlin and for taxes. The finding, from the evidence, of the isues tried, should have been for the appellants, and hence the court erred in refusing a new trial.

The judgment is reversed; with costs, and the cause remanded for a new trial, with leave to both parties to amend their pleadings.

J. Green, for appellants.

J. W. Robinson, N. R. Overman, and G. W. Lowley, for appellee.

The Columbus and Indianapolis Central Railway Co. v. Farrell.

The COLUMBUS AND INDIANAPOLIS CENTRAL RAILWAY COM

PANY v. FARRELL.

PRACTICE.— Supreme Court.— Credibility of IFitnesses.- Where upon appeal to

the Supreme Court the question is one of the credibility of witnesses sole

ly, the action of the lower court will stand. NEGLIGENCE.Railroad.--Injury to Passenger.-A railroad train ran beyond

the platform for landing passengers at a certain station, and stopped over a culvert, and the proper servants of the railroad company announced the name of the station as a notification to the passengers for that station that the train was there; whereupon a passenger for that station who had paid the company the fare demanded of him, relying on the good faith of the company, alighted upon and into said culvert, without his fault cr negligence, supposing he was alighting upon said platform, it being at night and so dark that ho.could not see that the train had not stopped at said plat

form; whereby he was greatly injured. IIeld, that the company was liable for the injury so received. SAME.-A railroad company is not legally responsible for the action of per

„sons not its servants in falsely announcing the arrival of a train at a station, whereby a passenger in attempting to alight from the train is injured.

APPEAL from the Marion Civil Circuit Court.

Farrell sued the railroad company, averring in his .complaint, that at the time of the injury complained of, the defendant was the owner and operator of the Columbus and Indianapolis Central Railway, extending from Indianapolis to Columbus, and likewise the owner and operator of all the rolling stock used upon said road, and was engaged in the business of common carrier for bire, of passengers and freight upon said road, by means of said rolling stock, and as such admitted the plaintiff into a car and train upon said road as a passenger thereon from Indianapolis to the town and station of Cumberland, in Marion county; that he then and there paid defendant the fare demanded from him by defendant; that by reason of the premises it became the duty of defendant to safely, carefully, and without negligence, carry the plaintiff from Indianapolis to Cumberland and safely, carefully, and without negligence, to land him and allow him to land from said car and train at Cumber

The Columbus and Indianapolis Central Railway Co. v. Farrell.

land; and for that purpose it was the duty of defendant to stop said train and car at, opposite to, and against, the platform at said station; that whenever the train was stopped at and against said platform as it should have been, it was safe for passengers to get out of said car and train so stopped, at any time, whether day or night, said platform being an easy and safe landing from said cars; that when defendant received the plaintiff and undertook as aforesaid to carry bim, it was night and dark; that defendant performed her said duty in that behalf so carelessly, that instead of safely and carefully carrying the plaintiff and landing him and suffering him to alight and land at and on said platform, the defendant stopped said train and car near to and over a eertain culvert; that it was dark so that the plaintiff could not see that the train was not stopped at said station and platform as it should have been; that being so stopped, defendant announced, and caused to be announced, the station “Cumberland," as a notification to the passengers for that station that the train was there; that the plaintiff, relying on the good faith of the defendant, as he had a right to do, without any fault or negligence on his part whatever, stepped off said car, as he supposed upon the platform, but, in fact, down upon and into said culvert, a distance of twenty feet or more, and by so stepping off into said culvert and falling upon the same, received great, severe, and permanent hurts and injuries, and among others, a severe rupture, resulting in great and permanent hernia; and received such injuries to his brain and spinal column and marrow, as to cause permanent paralysis; and had his eyes injured and put out, whereby he became blind, and still is, of one eye; and was confined to his bed, by reason of said injuries, for a long time, to wit, for one year; and had to pay surgeons' and physicians' bills in a large sum, to wit, five hundred dollars; and was greatly damaged, to wit, in the sum of ten thousand dollars, &c.

The defendant demurred to the complaint, for want of

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