*1 Chesapeake Company Railway Burk, & Ohio

Administratrix, etc. 30,072. Rehearing denied March Filed [No. June 1961.] *2 Cole, Cole, J.

Russel Wildman Wildman & Peru, appellant. for Hillis, Hillis,

Hillis & Robert C. T. Hillis John Hirschauer, Tom F. Logansport, appellee.

685 to trans J. This case comes to us Achor, Appellate Court, fer from the Burns’ under §4-215, Repl. Chesapeake Company Railway See: Ohio& Burk N. E. 2d opinion. alleged wrongful

This an action for death a truck driver whose truck collided with freight Kewanna," train aat at the town of damages by jury Indiana. Trial was and a verdict was rendered in appellee. favor of the Court affirmed.

One of acts of asserted appellee following: in his was the “19. That the death of said Aaron Burk was

proximately caused the careless and acts of the railway company defendant each following particulars: *3 b. That the defendant was then and there careless and in that it failed main- right angles tain at warning containing the words CROSSING’; ‘TWO,’ designating ‘RAILROAD a multiple track.” Among assigned by appellant the errors giv- are the ing of the 19,” “Court’s Final Instruction No. and the give appellant’s refusal court to tendered instruc- tion 4.No.

The Final reads, part, “Court’s Instruction 19” No. as follows: “Among negligence charged acts in the

plaintiff’s complaint following: are the (e) That sign, defendant failed to have a containing Danger; Crossing; words: Railroad (designating multiple track). Two ruling Statute, regulation, There no which

requires any items above complaint. only remaining your The issue sideration is whether due care under all of the require circumstances pro- would defendant any of vide the above items.” appellant objected to the instruction several grounds. ambiguity objection, Because of some we will consider of the instruction re- objection cited above and the thereto as follows: object, reason, “We for the further that the evi- sign, containing dence shows that awas ‘Danger,’ Crossing,’ words: and ‘Railroad ‘Two,’ designating multiple track, and there is contrary. no fore, is, The Court there- submitting negligence an issue of to the Jury, which is outside of the evidence.” allega There was no evidence in tion “that the defendant failed to contain ing ‘Danger,’ Crossing’; the words: ‘Railroad ” (designating ‘Two’ track) as referred to in fact, item “e” of said instruction. In undisputed present. evidence is that such a reason, For this the court’s instruction 19 inwas error because, objection, stated in “the court (was) submitting . . . an issue of to the jury, which is outside the evidence.”

Furthermore, for the discussed, same reason above give

was error for the court to appel refuse to lant’s tendered instruction No. 4. This tendered instruction reads as follows: *4 charge you “I allegations now that one of the of plaintiff’s complaint is that the defendant was care- less and in that it failed to maintain at angles crossing any sign warning or containing the ‘DANGER,’ words a CROSSING,’ you no evidence track). I instruct there is now you was can the defendant from which find guilty in said of the acts averred reason of to complaint, and as such of said negligence you the charge of find will defendant.”1 argument support the

Basically, of give 4, refusal instruction court’s because, issue relative thereto has waived argument portion brief, appellant failed to the of his except out and the evidence the set discuss given say that “all evidence that there was such showed crossing,” and latter a at the supported merely by the statement of one assertion is witness, sign, that there with a board was cross-arm containing crossing. Ap- the numeral “3” on it the that, pellee to establish error the court, appellant affirmatively should established argued size, brief and his position visibility and other characteristics sign. fallacy of the above rests in the fact grounds

that, negligence, upon as one of the based, appellee specifically al leged: “That the defendant failed to have a containing Danger, the words: Railroad Cross ing; (designating multiple track).” Two The burden proving prescribed sign the absence of the appellee. If there was “no evidence” in require specific objec- Rule 1-7 of this court does not 1. made to instructions which are refused. tions be require party requesting any not . Rule 1-7 does . in specific objection which has been make refused to struction ruling speaks itself, the court. The the under the instruction given, law and facts involved it should have been if stage preserves record at this error. . . .” Gilmore v. 229 Ind. 2d N. E. State *5 allegation, it was sufficient for the to so state in the portion appellant’s of his brief. If brief failed correctly argue state and facts which in were evidence appellee material to the had opportunity an to correct such statement in his answer appellee brief. This the did not do. We must therefore appellant’s assume that statement of the record is cor- rect in that there was no evidence that had failed to sign maintain a ap- cross-arm pellee’s complaint.2 circumstances,

Under the above canwe conclude that Instruction 19 was erroneous related to this particular issue, and that it was error for the court to give appellant’s refuse to tendered instruction which designed to particular remove the issue from the upon jury complete proof. awas failure Judgment is therefore reversed and a trial new ordered.

Bobbitt, J., Landis, C. JJ., Arterburn and concur. Jackson, J., concurs in the result.

ON PETITION FOR REHEARING appellee, rehearing, J. The in its Achor, this court erred in its and decision 9, 1961, of March in which this court both ac- cepted Court and discussed the case merits the issues involved. appellee, alleging error on the of this court, first cites the fact con- sign 2. The fact was “drab” is a common character- signs. may provided of such It istic Instruction 10 dition of such basis knowledge of the decedent as to the con- proximate cause, as related to the issue of but nullify appellant's right it did not to have the issue as to the jury, non-existence removed from the in the absence any issue. the court evidence before that there was sufficient eluded upon the the court based an instruction to to sustain (appel- plaintiff’s lee’s) complaint, to-wit: careless then and there “That the defendant was to maintain and angles in that it failed

taining the words CROSSING’; *6 track).” determining Appellee court, in then asserts that this upon support no to an instruction there was evidence erroneously obliged the did search this and the record in order to conclusion since arrive this there was sufficient opinion Appellate of the Court held upon question present an particular this jury. Furthermore, appellee issue fact to the searching question of evi- the record the the that basing opinion thereon, dence and in this court went its beyond authority its because it outside the issues went presented by petition the to transfer.

Apparently misapprehension in the matter accepting the result the fact that court after this transfer of the limit discussion to the case did not its presented by petition opinion issues the to transfer. The specifically presented by does not deal with the issue such, merely but discusses to transfer as conjunction other that with errors committed issue Therefore, brief directed the trial court. statement specifically Appellate to the issue of transfer appropriate. Court seems stated,

As heretofore one of the acts specifically appellee’s complaint was as follows: “That the defendant was then and there careless in that it failed to maintain at angles taining words CROSSING’;

track) Appellate The error in the Court grounds asserted court, this was the fact that the held appellant argument that portion because only his brief asserted not there was no allegation, argued evidence to but further point subject evidence on that showed character, there was a of that it therefore became the burden of the to establish the location, position, visible, “its its itwas right angles was it at so could be seen and read highway traveler, sign.” proper and was it a decision of predicated Court is fact failed to include within the briefs subjects argue recital of the evidence these and to this portion issue of its brief. It was *7 necessary not do so.

Appellee’s complaint any denied the existence crossing sign, specifically which it undertook to describe. Appellant, brief, in its stated that there was no evidence non-existence of such a whatever as to the and this tacitly by fact is opinion Appellate admitted of the circumstances, Court. Under these it error for the Appellate impose upon Court to the burden proving location, position visibility the exact or specific as a condition to the withdrawal of the allegation appellee’s complaint which denied the sign. existence of pre- These were not the issues sented in com-

691 may may not have plaint, fact and the subjects evidence in the these been record not as presented by not did stated were opinion justify Appellate Court, the refusal of the non- as to the of the trial court to withdraw the issue any sup- crossing sign existence of a in the absence having port question raised thereof. This been subject objection that we brief is not have searched the to reverse. record accepted of the

Transfer to this court was because principles of the contained enunciation erroneous law Court, as hereto of the Having accepted fore discussed. transfer obliged case this court is to consider the case appeal. originally presented it if were to this court on Under such circumstances its consideration of the case petition presented by is not limited to the issues St., (1946 Repl.). transfer. Burns’ Ann. §4-215 Co. v. Ry. Ingle App. (1946), 229, Southern 117 Ind. 746; 408, (1908), N. E. 2d v. Lehman Kraus 170 Ind. v. Terre 714, 769; Payne Haute, 83 N. E. 84 N. E. etc. (1902), 616, R. Co. 157 Ind. 62 N. E. 472.

Furthermore, having accepted this court Appellate Court, consideration its of the case required accept

is not limited nor stated in the Coal Co. Indianapolis, Court. Riverside No. etc. 194 Ind. 139 N. Works E.

N. E. 377. stated, rehearing

For the reasons above denied. J., Landis, Arterburn, Jackson, JJ., C. Bobbitt and concur. Reported Rehearing in 172 N. E. 2d 670.

Note. — N. E. 2d denied 175