Am. St. Rep. 305, and authorities cited. 3 2 Elliott, Roads & Streets (3d Ed.) § 1180. 5. DEPOSITIONS 83(4)-MOTION TO SUPPRESS-TIME OF MAKING. A motion to suppress depositions must be made before the cause is submitted to the jury. [Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 222-226; Dec. Dig. 83(4).] 6. NEW TRIAL 104(1)-NEWLY DISCOVERED EVIDENCE-CUMULATIVE. A motion for new trial on the ground of newly discovered evidence was properly overruled, where the evidence would be merely cumulative and not likely to change the result at another trial. Cent. Dig. 88 218, 228; Dec. Dig. 104(1).] [Ed. Note.-For other cases, see Witnesses, ERROR PRIVILEGED While the introduction of a clinical record [9, 10] There is no insistence that the board acted other than as directed by the statute, which is broad enough to include the alleged injuries of appellant. He was not awarded damages, and this action can be accounted for on the theory that in the judgment of the board he sustained no special injury different in kind from that of the pub- of testator in a will contest might be objectionlic generally. He was not compelled to ac-able as a privileged communication, the error, cept the judgment of the board, for, had he if any, in admitting it was rendered harmless remonstrated, the statute gave him 20 days by the appellant asking his own witness to in which to appeal to the circuit or superior testify as to the clinical record. court of the county. His remedy in this respect was by appeal, and not by an independent action. Judgment affirmed. (186 Ind. 221) STALKER v. BREEZE. (Supreme Court of Indiana. (No. 22894.)* Jan. 30, 1917.) 1. WILLS 324(2) - TESTAMENTARY CAPACITY-SUFFICIENCY OF EVIDENCE. Evidence offered in a will contest held sufficient to submit to the jury the issue of testator's testamentary capacity. [Ed. Note.-For other cases, see Wills, Cent. Dig. 768; Dec. Dig. 324(2).] 2. APPEAL AND ERROR VERDICT. [Ed. Note. For other cases, see Appeal and Dec. Dig. 1050(1).] Error, Cent. Dig. $$ 1068, 1069, 4153, 4157; 9. TRIAL ~63(2)—ADMISSIBILITY OF EVIDENCE IN REBUTTAL. It is within the discretion of the trial court to admit or exclude in rebuttal, evidence which should have been given in chief. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 152; Dec. Dig. 63(2).] 10. TRIAL ~63(2)—EVIDENCE IN REBUTTALABUSE OF DISCRETION. Under the evidence offered in a will contest, held that the court did not abuse its discretionary power in admitting evidence on rebuttal. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 152; Dec. Dig. 63(2).] 1001(1)—REVIEW-11. TRIAL ~62(2)—EVIDENCE IN REBUTTAL— RES GESTEÆ. Where the evidence in a will contest was sufficient to form an issue of fact as to testamentary capacity and the jury found against the validity of the will, the evidence will not be reviewed on appeal. [Ed. Note. For other cases, see Appeal and Error. Cent. Dig. §§ 3928, 3933; Dec. Dig. 1001(1).] 3. TRIAL 260(1)—REFUSAL OF INSTRUCTIONS COVERED BY WHOLE CHARGE. Where the instructions given in a will con witness as to a conversation regarding testa- Appeal from Superior Court, Elkhart Action by Mary Ann Breeze against John test included every phase of the case and all W. Stalker. Judgment for plaintiff, and de matters treated in appellant's requests, it was not error to refuse such requests. [Ed. Note. For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. ~260(1).] 4. DEPOSITIONS DENCE. 89-ADMISSION IN EVI fendant appeals. Affirmed. C. C. Raymer, of Elkhart, for appellant. Conley, Frank & Conley and William B. Hile, all of Elkhart, for appellee. Where it was not claimed that the depositions were improperly taken or that the witERWIN, J. This was an action by appelnesses were produced in court, the depositions showing that all were nonresidents, there was lee to contest the validity of the will of her no error in submitting them in evidence, over brother, John W. Stalker, an elderly bache For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 284. lor, and to set aside the probate thereof for not so made, and came too late. Cohen v. the reason that decedent was of unsound Richman, 55 Ind. App. 164, 167, 102 N. E. mind, and that the will was unduly executed. The will in question was executed on December 15, 1913, just a few hours prior to testator's death. The will gave the entire property of testator to his nephew and namesake, John W. Stalker, of Stagg, Cal. Appellee was a beneficiary under a prior will dated August 25, 1888. Trial was had by jury, resulting in a verdict and judgment in favor of appellee, declaring the will invalid and setting aside the probate thereof. [6] It is contended that the court erred in overruling the motion for new trial because of certain newly discovered evidence. An examination of the affidavits in support of the motion, which set out the newly discovered evidence, shows that the evidence would be cumulative and impeaching only, and of a character not likely to change the result at another trial. The rule is: "That newly discovered evidence of a merely Appellant filed his motion for new trial cumulative character, or which tends only to assigning 157 causes therefor. This motioning a different result from that already reachthe impeachment of a witness, without renderwas overruled, and the only error assigned ed probable, affords no sufficient ground for a calls in question that ruling of the court. new trial." [1, 2] Appellant contends that the verdict of the jury is not sustained by sufficient evidence. Without setting out the evidence herein, which is voluminous, it is sufficient to say that, in our opinion, there was at least sufficient evidence introduced in the case to form an issue of fact as to testator's testamentary capacity, and, that issue hav ing been submitted to the jury, which found against the validity of the will, this court could not, if it so desired, invade the province of the jury and weigh the evidence. Boland v. Claudel, 181 Ind. 295, 298, 104 N. E. 577; Public Utilities Co. v. Handorf, 112 N. E. 775. We are therefore of the opinion that the court did not commit error in its ruling upon this cause for new trial. Sutherlin v. State, 108 Ind. 389, 391, 9 N. E. 298; Williams v. State, 170 Ind. 630, 632, 85 N. E. 113; Ludwig v. State, 170 Ind. 648, 654, 85 N. E. 345; Ray v. Baker, 165 Ind. 74, 88, 74 N. E. 619; City of Hammond v. Jahnke, 178 Ind. 191, 99 N. E. 39; Thain v. State, 182 Ind. 345, 349, 106 N. E. 690. It is contended that it was error to permit the reading in evidence of the decedent's clinical record, kept by the nurses of the hospital for the hospital, for the reason that it was privileged, was incompetent, and hearsay evidence. The record herein shows that appellant called as a witness one of the nurses who made a portion of the clinical record and examined her in relation to certain things which she found upon the same. [7] It has been held by this court that the [3] It is contended by appellant that the trial court erred in refusing to give his tendered instructions numbered 1 to 22. These tendered instructions were, in all particulars in which they were applicable to the evidence and issues of this case, included in the instruction given by the court. The court's instruc-privilege given by statute to a patient or his tions covered fully every phase of the case, including what did and what did not constitute unsoundness of mind; what constituted a proper execution of the will, as to signing and witnessing; the burden of proof and facts necessary to be proven to set aside the will, with every phase of the law, covering the facts and controversy in the case. We find no reversible error in the refusal to give instructions tendered or in the instructions given by the court. Boland v. Claudel, 181 Ind. 295, 104 N. E. 577. [4] Appellant contends that the court erred in permitting certain depositions to be read in evidence over his objections, made at the time appellee offered to read them, that the reason for taking the depositions is not shown to still exist. The depositions show that the witnesses were all nonresidents of the state. It is not contended that the deposition was improperly taken, nor that the witness was "produced in court"; therefore the court did not commit error. Louisville, etc., R. Co. v. Hubbard, 116 Ind. 193, 194, 18 N. E. 611. legal representatives in relation to communications made to the patient's physician may be waived, and, when once waived, it cannot be recalled, and the information is no longer privileged. Pittsburgh, etc., R. Co. v. O'Connor, 171 Ind. 686, 85 N. E. 969. [8] We are of the opinion that, although the clinical record itself may be incompetent as a privileged communication (Smart v. Kansas City, 208 Mo. 162, 105 S. W. 709, 14 L. R. A. [N. S.] 565, 578, 123 Am. St. Rep. 415, 13 Ann. Cas. 932), the error, if any, in permitting the clinical record to be read in evidence was rendered harmless by appellant's asking his own witness, one of the nurses, to testify as to part of the contents of the same record. the introduction of certain evidence in re[9, 10] The next contention is based upon buttal which was a part of appellee's main case. It is within the discretion of the trial court to admit or exclude in rebuttal evidence which should have been given in chief. We have carefully read the evidence given, and cannot say that the court has here abus [5] A motion to suppress a depositioned its discretionary power. should be made before the case is submitted to the jury for trial. The motion here was It is contended by appellant that the court erred in overruling their objections to certain questions propounded to the witnesses Ma- | sonable minds cannot honestly differ as to loney and Friedman, nurses who were pres- whether he exercised reasonable care. ent when the will was executed and which Cent. Dig. § 1166; Dec. Dig. 350(13).] testimony was offered in rebuttal. The objection to this testimony was that it should have been offered in their examination in chief as witnesses for plaintiff, was not proper rebuttal, and was an attempt to impeach the witness Fleming on an immaterial mat ter. [Ed. Note.-For other cases, see Railroads, 3. RAILROADS 327(8)-ACCIDENTS AT CROSSING-CONTRIBUTORY NEGLIGENCE-ACTS RE QUIRED. While ordinary care in approaching a railroad crossing requires as a matter of law the traveler to use his senses of sight and hearing. it does not require him to stop or look or listen at any particular place, except that he must do so at some place where such precautions would enable him to learn of the approach of a train. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1051; Dec. Dig. 327(8).] 4. RAILROADS 324(1)—ACCIDENTS AT CROSSING- CONTRIBUTORY NEGLIGENCE - DRIVER OF AUTOMOBILE. Though the jury may properly consider the more complete control over an automobile, and the freedom from danger of fright, as compared whether the driver used due care in approachwith a horse-drawn vehicle, in determining ing a railroad crossing, the legal duty of an automobile driver does not differ from that of the driver of a horse-drawn vehicle. [11] The witness Fleming was a witness for the defense, and testified that he had written the will in question, and gave it as his opinion that the testator was of sound mind. On cross-examination this witness was asked if he had not had a conversation with the nurse, Maloney, at the time he was writing the will, and if he had not made certain statements in relation to the sanity of decedent which were denied, but stated that certain statements were made by the nurse to him at the time. In rebuttal these two witnesses were called to give their version of the conversation, which they did by stat-Cent. Dig. §§ 1020, 1022, 1023; Dec. Dig. [Ed. Note.-For other cases, see Railroads, ing that the witness Fleming had made certain statements at that time. This testimony was confined to the conversation had at the time the will was being prepared and was part of the res gestæ, and would have been proper if introduced in chief, and was not improper rebuttal. The fact that the testimony contradicted the testimony of the witness Fleming did not make it objectionable. The question of the sanity of the testator at the time the will was made was one of the material matters in issue, and all that was done and said by testator or the parties present was a part of the transaction, and therefore competent. Appellant assigns 70 additional causes for new trial, based upon the introduction and exclusion of certain evidence. We have examined these, and are of the opinion that they present no reversible error. 324(1).] 5. RAILROADS 352-ACCIDENTS AT CROSSING-SPECIAL VERDICT-CONTRIBUTORY NEGLIGENCE. In an action for injuries to an automobile driver, who was struck at a railroad crossing by cars shunted by a flying switch after the engine had gone by, answers by the jury to special interrogatories held not to show any acts or omissions by the driver which rendered him contributorily negligent as a matter of law, and therefore to require a judgment for defendant notwithstanding a general verdict for plaintiff. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1216; Dec. Dig. 352.] 6. RAILROADS 304, 351(5)-ACCIDENTS AT CROSSING NEGLIGENCE VIOLATION OF STATUTE. Under Burns' Ann. St. 1914, § 2671, making it a misdemeanor to permit a railroad car to remain across a public street, it is negligence per se to leave a car standing partly across the street, and the jury may be so instructed in an action for injuries to the driver of an automo There being no reversible error, the judg- bile at the crossing. ment is affirmed. (186 Ind. 262) CENTRAL INDIANA RY CO. v. WISHARD.* (No. 22762.) (Supreme Court of Indiana. Jan. 30, 1917.) 1. RAILROADS 324(1)-ACCIDENTS AT CROSSING-CONTRIBUTORY NEGLIGENCE-DEGREE OF CARE. The law imposes on travelers on a highway approaching a railway crossing the duty to use reasonable care. [Ed. Note. For other cases, see Railroads. Cent. Dig. §§ 964, 1198; Dec. Dig. 304, 351(5).] 7. RAILROADS 351(13) ACCIDENTS AT CROSSING-REQUESTED INSTRUCTIONS-CON- TRIBUTORY NEGLIGENCE In an action for injuries to an automobile driver at a railroad crossing, a requested instruction that, if plaintiff was operating his automobile in violation of any of the provisions of Burns' Ann. St. 1914, §§ 10465, 10476, he could not recover, without requiring a finding that the violation contributed to the injury, was properly [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1020, 1022, 1023; Dec. Dig. refused. 324(1).] 2. RAILROADS 350(13) ACCIDENTS AT CROSSING QUESTION FOR COURT-CONTRIBUTORY NEGLIGENCE. The question whether a traveler approaching a railway crossing has performed the duty imposed upon him as a matter of law, by exercising the ordinary care required by the circumstances, is a question of fact, unless the acts done or omitted by him are of such a nature that rea [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1205; Dec. Dig. 351(13).] 8. TRIAL 260(1) REQUESTED INSTRUCTIONS-REPETITION OF GIVEN INSTRUCTION. There is no error in refusing a requested instruction, though it correctly states the law, if it was sufficiently covered by instructions given. [Ed. Note. For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. 260(1).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1115; Dec. Dig. 345(3).] 10. APPEAL AND ERROR 854(1)-REVIEWINCORRECT REASON FOR CORRECT DECISION. A ruling of the trial court will be upheld on appeal, if it was correct for any reason, since every presumption is indulged in favor of such ruling. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3406; Dec. Dig. 854 (1).] 330-ORDINANCES-VALIDI 11. EVIDENCE TY-PUBLICATION-STATUTE. 9. RAILROADS 345(3)-ACCIDENTS AT CROSS-| Collision of appellant's cars with appellee's ING ISSUES CONTRIBUTORY NEGLIGENCE- automobile when he was crossing appellant's VIOLATION OF ORDINANCE. In an action for injuries to an automobile tracks at a street crossing in the city of driver at a railway crossing, defendant can unNoblesville. The record shows that the der a general denial, introduce evidence of a city tracks of appellant in the city of Noblesordinance and its violation by plaintiff, to show ville run east and west along and within the contributory negligence. limits of Vine street, and that Sixth street in said city runs north and south, and crosses Vine street and appellant's tracks practically at right angles. In addition to its main track appellant maintained two switch tracks, one north and the other south of the main track, and also a spur track north of the main track, all of which crossed Sixth street. There were a coal shed and other obstructions near the crossing, and, at the time of the injury to appellant, a freight car 82 Under a statute (Burns' Ann. St. 1901, 8 feet in height was standing on the north 3535) providing that every by-law imposing a side track, the west end of which extendpenalty for violation thereof shall, before it ed into Sixth street a distance of 81⁄2 feet. takes effect, be published two weeks consecutively in some newspaper, an ordinance providing Appellee was driving his car south on Sixth that it should take effect after its publication street, and was attempting to cross the for two weeks in a newspaper, the first publica- tracks on Vine street, when his automobile tion being "on the day and the second on the day of said month," does was struck by a cut of cars which were apnot furnish presumptive evidence that it was proaching from the east. The negligence in effect. charged against appellant by the complaint is that it negligently left said freight car standing on its side track in the street; that it negligently and carelessly, and without In Burns' Ann. St. 1914, § 8654, prescribing from the east over its main track, without notifying appellee, ran a cut of freight cars the manner in which ordinances shall be passed, providing that they shall not become operative any bell or whistle attached thereto, against until signed by the presiding officer of the coun- appellee's automobile; that it negligently cil and approved by the mayor, or passed over kicked or shunted, or by means of what is his veto, that they shall be recorded by the city known as a flying switch "ran, said freight clerk, and that such record shall be presumptive evidence of the passage and taking effect of such cars toward the west and across said crossordinance, the provision for presumptive evi- ing, without any engine attached thereto, dence does not apply to a penal ordinance, the and without any watchman on the west end record of which fails to show its publication as of said cut of cars, and without any watchrequired by statute. man at said street crossing." The errors assigned, and not waived, are the overruling of appellant's motion for a new trial and the overruling of its motion for judgment on the interrogatories notwithstanding the general verdict. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 1234; Dec. Dig. 330.] 12. EVIDENCE 330 - ORDINANCES DENCE-PRESUMPTIONS-STATUTE. ORDINANCE ADMIS [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1234; Dec. Dig. 330.] 13. EVIDENCE 330 SION IN EVIDENCE-OBJECTION. A penal municipal ordinance, not shown to have been published as required by statute, was properly excluded from evidence on objection, though, if it had been admitted without objection, it would be presumed that it had been properly published. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1234; Dec. Dig. 330.] Appeal from Circuit Court, Tipton County; Leroy B. Nash, Judge. Action by Ernest E. Wishard against the Central Indiana Railway Company. Judgment for plaintiff, and defendant appealed to the Appellate Court, from which the case was transferred to the Supreme Court (108 N. E. 35). Judgment affirmed. U. C. Stover, of Indianapolis, and Dan Waugh, of Tipton, for appellant. Wymond J. Beckett and Wm. F. Elliott, both of Indianapolis, for appellee. LAIRY, C. J. Appellee recovered a judgment against appellant for damages on account of injuries to his person, caused by a Appellant asserts that the answers to interrogatories show affirmatively that appellee was guilty of contributory negligence. As bearing on this question, such answers show that appellant was acquainted with Sixth street crossing over appellant's tracks; that before he turned into Sixth street he had seen the engine and cars at Eighth street, which is about 400 feet east of Sixth street; that he approached the crossing with his engine in high gear, but at low speed, and stopped it on the east side of Sixth street at a point 30 feet north of the main track; that Sixth street is 50 feet wide, and that there was nothing to prevent him from stopping his car on the west side of the street; that a fence and a shed 10 feet high along the east side of Sixth street extended to a point within 7 feet of the side track, and that appellant knew of said fence and shed; that there was a coal car 8 or 9 feet high standing on the side track at the east side of Sixth For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes street, with its west end extending 8 or 9 feet into Sixth street and that the center of the side track was 13 feet north of the center of the main track; that appellee heard the engine and cars coming toward Sixth street from the east, and while his automobile was stopped the engine and one car passed over Sixth street; that the seat on appellee's automobile was 4 or 5 feet back of the front end of the car, and when seated therein his eyes were about 5 feet above the ground; that, with little inconvenience appellee could have alighted from his automobile and gone forward and ascertained whether other cars were following the engine and car which had passed; that he did not rise up or change his posture, so as to obtain a better view of the tracks in either direction, before driving upon the tracks; that he did not stop the motor while his car was standing, and that it made a noise while running; that after the engine and car had passed the crossing appellee put his car in motion, but not immediately, and was proceeding at about 4 miles per hour when he started to cross the main track between the car attached to the engine which had passed and the cut of cars following; and that he did not see the cut of cars which struck his automobile until they were within 3 or 4 feet of his car. The foregoing facts, taken from the answers to interrogatories, are those most favorable to appellant's contention, and are the ones upon which he relies as showing contributory negligence. that are specifically required or forbidden by a law or ordinance. As to those acts, the doing of those so forbidden, or the omission to do those so required, is negligence per se. With this latter question we are not now concerned, and it is mentioned only that the distinction may be preserved between negligence as a matter of law and negligence as a question of fact. [3] The courts of this state have been very cautious in stating that any special acts or precautions were required in the exercise of ordinary care, generally leaving that question to the jury. This court has declared as a matter of law that ordinary care requires a person about to cross a railroad track to use his senses of sight and hearing, but it has never said that he must stop or that he must look or listen at any particular place, except that he should look or listen at some place where such precautions would enable him to see or hear the approach of a train. Pittsburgh, C., C. & St. L. Ry. Co. v. Dove (1916) 111 N. E. 609, and cases there cited. It Appellant asks us to go further in this case, and to declare as a matter of law that other specific precautions on the part of appellee were necessary in the exercise of ordinary care, as, for instance, to stop his motor, or to stand up and look, or to get out and go forward and look, up and down the track. It is possible that the judge who presided at the trial may have thought that ordinary care, under the circumstances shown, required the use of some or all of such precautions, or that some of the members of this court may think so; but these are not questions of law for the decision of courts. has been thought wise to submit such question to the 12 laymen composing the jury, to be decided as questions of fact under proper instructions from the court, in order that they may bring to bear their varied experiences and knowledge of men, in determining what a reasonably prudent man would ordinarily do under the circumstances disclosed by the evidence. This court cannot say that there is no room for reasonable minds to differ on any of these questions, and therefore cannot hold as a matter of law that any precaution under consideration should or should not have been observed in the exercise of due care. [1, 2] It is claimed that these answers show that appellee did some things which ordinary care required him not to do under the circumstances, and that he neglected to do some things which ordinary care required of him. The law imposes a duty on travelers on a highway approaching a railway crossing to use reasonable care. This duty arises out of the relation of parties, and is declared to exist as a matter of law; but, when the question arises as to what acts or conduct ordinary care requires under the circumstances of a particular case, this must generally be determined as a question of fact. The court cannot say as a matter of law that ordinary care requires a designated act to be done, or that it required a specific act to be omitted, unless the act in question was of such a character as to be wholly incompatible with [4] Appellant asserts that a distinction the exercise of reasonable care when consid- should be drawn between automobiles and ered in the light of attending circumstances. vehicles drawn by horses in respect to the It must be so absolutely inconsistent with conduct of the driver in approaching a railthe exercise of ordinary care that there way crossing. It is suggested that the speed could be no room for reasonable minds to of an automobile is under the complete condiffer on the question. So long as there is trol of a driver, and that, when moving at room for an honest difference between rea-slow speed, it can be brought to a quick sonable minds as to whether or not the do- stop within a few feet of the tracks, if necing (or the omission to do, as the case might essary to avoid danger, without exposing the be) of the particular act was consistent with occupant to the danger incident to the fright the care that a man of ordinary prudence of horses, which would be likely if the vehiwould use under the circumstances, the ques-cle were drawn by horses. There can be no tion is one of fact for the jury. What has doubt that it is possible for the driver of an |