66 Ind. App. 542 | Ind. Ct. App. | 1918
— This is an appeal from a judgment for $1,200 rendered in favor of appellee in an action brought by her against appellant for damages alleged to have been sustained as a result of appellant’s negligence in leaving exposed and unguarded a hole which it had dug in a public highway.
Appellant assigns as error upon which it relies for reversal: (1) The overruling of its motion to require appellee to make more specific her second amended complaint; (2) the overruling of its demurrer to said complaint; (3) the overruling of its motion for a new trial.
Appellant is a corporation engaged in operating an electric light plant in the city of Angola for furnishing light and power to said city, and other towns in Indiana. During the fall of 1913 appellant was engaged in the construction of transmission lines for the purpose of furnishing light, etc., to the towns of Waterloo and Hudson. As part .of such work, appellant dug holes for the purpose of erecting therein poles, on which to place its transmission wires along the public highway running north from Center street, in the town of Waterloo. Appellant dug one of these holes in said highway about six and one-half feet deep, and about ten rods north of the north corporate line of said town, and wrongfully, negligently and unlawfully left said hole open and exposed and without any guard, signal or warning of danger to persons passing along said highway. On March 25, 1915, at about eight o’clock p. m., appellee was traveling along said highway, and stepped into said hole and fell. At that time she had no knowledge of the existence of said hole, and was unable to see it on account of the darkness, and she then had no notice that she incurred any danger in traveling along said highway. As a result of said fall, appellee was greatly injured in her back, arm, sides, etc., and her health was greatly impaired. Said injuries were caused by the negli-
In its points and authorities, under the point that the court erred in overruling its demurrer to said complaint, appellant states two abstract propositions, which are substantially as follows: (1) That its use and occupancy of said highway was lawful, because it had a franchise from the board of commissioners of DeKalb county to occupy said highway; (2) that unless the work that was being performed by appellant was in itself unlawful or a nuisance, appellant would be liable to appellee only if it was negligent in the manner of conducting the work.
Under the third error assigned, viz., the overruling of its motion for a new trial, appellant challenges the overruling of its objections to three questions, propounded to appellee on direct examination, on the ground that they were leading and suggestive of the answers sought to be elicited. These questions, and the answers made thereto, are as follows: Q. ‘ ‘ State to the jury whether since the accident you have had any trouble in getting rid of your urine? ” A. “Tes, sir.” Q. “State what has been the condition of your bowels since the accident?” A. “My bowels are soré and hurt.” Q. “What was your condition as to being cold when you got home?” A. “I was cold — pretty near froze.”'
Generally speaking, a ruling, if erroneous, is presumed to be harmful, but the errors, if any, resulting from the rulings supra are of that technical character contemplated by §§407, 2221 Burns 1914, §§398, 1891 B. 8.1881, upon which a reversal should not be predi-' cated, unless the record is such as. to affirmatively indicate that the appellant was injured thereby. Culbertson v. Stanley (1841), 6 Blackf. 67; Rodman v. Kelly (1859), 13 Ind. 377; Snyder v. Snyder, supra. There is nothing in the question and answers here involved, or in the record, to justify this court in saying that the rulings thereon were harmful.
Appellant says that there was error in permitting witness Darby, a physician, to answer the following question on redirect examination: “In regard to this matter of constantly attending her, didn’t you visit her of tener 1 ’ ’
Appellant challenges the action of the trial court in admitting and excluding certain evidence of the witness A. D. Wood, a physician. This witness was asked by appellant for his opinion as to the possibility of improvement in appellee’s physical condition if she had received regular medical attention during the year just preceding the trial. An objection by appellee was sustained. The same witness on redirect examination was. permitted to answer a question ask
For the reasons indicated, the judgment of the trial court is affirmed.
Note. — Reported in 118 N. E. 572. See under (16) 37 Oye. 295-298. • Duties and liabilities of electric corporations, generally, 100 Am. St. 515.