Adkins v. Poparad

Decision Date30 November 1943
Docket NumberNo. 27919.,27919.
Citation222 Ind. 16,51 N.E.2d 476
PartiesADKINS v. POPARAD.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Action by Virendia Adkins against Tony Poparad, doing business as Tony's Coach Lines, for damages for personal injuries. From a judgment for defendant, plaintiff appeals. Transferred from the Appellate Court under Burns' 1933, § 4-218.

Affirmed.Appeal from Shelby Circuit Court; Harold G. Barger, Judge.

J. Burdette Little, of Indianapolis, and Claude R. Henry, of Shelbyville, for appellant.

French M. Elrod, Garth B. Melson, and Joseph O. Hoffman, all of Indianapolis, for appellee.

RICHMAN, Judge.

Appellant sued for damages for personal injuries alleged to have been caused by the negligence of appellee. A jury found for appellee. Motion for new trial was overruled and error is assigned on the ruling. No errors are specified except upon the giving or refusal of instructions.

Appellant complains of the giving of appellee's instruction 4 and refusal to give her instructions 10, 15, 16 and 20. These all dealt with the measure of damages. Since by the verdict the jury determined against appellant the main issues, i. e. negligence and freedom from contributory negligence, any error in instructing on the measure of damages must be treated as harmless. 5 C.J.S., Appeal and Error, § 1773, n. 74, citing many cases including State ex rel. Fenstermacher v. McNelis, 1919, 72 Ind.App. 231, 242, 122 N.E. 690, 694;Roll v. Dockery, 1929, 219 Ala. 374, 122 So. 630, 65 A.L.R. 1473, 1475;Gardner v. Turk, 1938, 343 Mo. 899, 909, 123 S.W.2d 158. The same principle applies to alleged error in giving appellee's instruction 9 which discussed the method of testing the weight of expert testimony of medical witnesses all of which evidence, so far as the record discloses, was directed to her disability and had nothing to do with the main issues. Appellant's only criticism of appellee's instruction 7 was not brought to the attention of the trial judge as required by Rule 1-7, 1940 Revision, and therefore may not be considered. Keeshin Motor Express Co. v. Sowers, Ind.Sup., May 11, 1943, 48 N.E.2d 459, 461. The subject matter of instruction 18 tendered by appellant and refused was covered by her instructions 12 and 14 and the court's instructions 28 and 29 all of which were given.

Finally appellant complains of the instructions given ‘as a whole’, because they did not fairly and correctly state the law of the case. No such objection was made in appellant's attempted...

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4 cases
  • Chesapeake & O. Ry. Co. v. Boston
    • United States
    • Indiana Supreme Court
    • November 17, 1948
    ... ... Gerking v. Johnson, 1942, 220 Ind ... 501, 44 N.E.2d 90; Keeshin Motor Express Co. v ... Sowers, 1943, 221 Ind. 440, 48 N.E.2d 459; Adkins v ... Poparad, 1943, 222 Ind. 16, 51 N.E.2d 476. Instruction ... No. 26 in substance would have instructed the jury as a ... matter of law that ... ...
  • Chaffee v. Clark Equipment Co.
    • United States
    • Indiana Appellate Court
    • July 16, 1985
    ...measure of damages. Where the verdict denied liability, error in an instruction on the measure of damages is harmless. Adkins v. Poparad (1943), 222 Ind. 16, 51 N.E.2d 476. Chaffee next attacks several instructions tendered by Clark and given by the court. He first attacks Clark's tendered ......
  • Smith v. Kauffman
    • United States
    • Indiana Appellate Court
    • September 9, 1977
    ...(1974), Ind.App., 307 N.E.2d 516. See, Chestnut v. Southern Indiana R. Co., supra, (1901), 157 Ind. 509, 62 N.E. 32; Adkins v. Poparad (1943), 222 Ind. 16, 51 N.E.2d 476. Therefore we do not address For the foregoing reasons the judgment of the trial court must be affirmed. Judgment affirme......
  • Brook v. St. John's Hickey Memorial Hospital
    • United States
    • Indiana Supreme Court
    • September 13, 1978
    ... ... 5, because any error which may have been committed would have been rendered harmless. See Adkins v. Poparad (1943), 222 Ind. 16, 51 ... N.E.2d 476, and Kosanovic v. Ivey (1968), 142 Ind.App. 481, 235 N.E.2d 501 ... [269 Ind. 280] Issue Three ... ...

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