40 Ind. App. 457 | Ind. Ct. App. | 1907
While a passenger upon appellant’s traip, appellee received personal injuries for which he seeks to recover damages. It is alleged that his injuries are permanent, and were caused by a collision between a passenger-train and a freight-train running in opposite directions upon appellant’s road. The force of the collision threw appellee
The action of the court in overruling appellant’s motion for a new trial is assigned as error. Appellant discusses the third, eighth and ninth reasons for a new trial.
Section 388 Burns 1901, §385 R. S. 1881, provides that, if there be no answer, the relief granted cannot exceed the relief demanded. This may be construed to relate to the amount where pecuniary relief is sought. It does not apply to the ease at bar, because an answer was filed.
The complaint might have been amended in the court below in the respect referred to, and should be deemed to be amended by this court. Webb v. Thompson (1864), 23 Ind. 428; Numbers v. Bowser (1868), 29 Ind. 491; Colson v. Smith (1857), 9 Ind. 8; Bozarth v. McGillicuddy (1898), 19 Ind. App. 26; Evansville, etc., R. Co. v. Holcomb (1894), 9 Ind. App. 198.
Judgment affirmed.