New York, Chicago, & St. Louis Railroad v. Martin

77 N.E. 290, 37 Ind. App. 705, 1906 Ind. App. LEXIS 93

• Court: Indiana Court of Appeals
• Decided: March 15, 1906
• Docket: No. 5,490
• Status: Published

Opinion

Myers, J.

In this case the same questions are presented for decision as were involved in the case of New York, etc., R. Co. v. Martin (1905), 35 Ind. App. 669. The petition to transfer that case to the Supreme Court was denied. The petition rested upon the following reasons: (1) That a new question of law was involved and erroneously decided. (2) That the opinion of this division of the Appellate Court in that case contravened rulings precedent of the Supreme Court, as announced in Terre Haute, etc., R. Co. v. Brunker (1891), 128 Ind. 542, and Cincinnati, etc., R. Co. v. Hiltzhauer (1885), 99 Ind. 486. The ruling of the Supreme Court in denying the petition to transfer was in effect an approval of the opinion in that case, so far as it was challenged by the specific reasons assigned therein for transfer. City of Huntington v. Lusch (1904), 163 Ind. 266. By that petition the principal and controlling questions in this case were squarely presented to the Supreme Court, and its ruling thereon must be considered as authority in this case upon the questions so presented. Therefore, upon the authority of that case and the ruling of the Supreme Court on the petition to transfer, the judgment of the trial court in this cause is reversed, with instructions to sustain the demurrer to the complaint.