Baltimore & O.S.W.R. Co. v. Reed
| Decision Date | 18 April 1912 |
| Docket Number | No. 7,548.,7,548. |
| Citation | 50 Ind.App. 220,98 N.E. 141 |
| Parties | BALTIMORE & O. S. W. R. CO. v. REED et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Monroe County; Jas. B. Wilson, Judge.
Action by William H. Reed and others against the Baltimore & Ohio Southwestern Railroad Company. From judgment for plaintiffs, defendant appeals. Affirmed.
W. R. Gardiner, C. K. Tharp, C. G. Gardiner, and Edward Barton, for appellant. Brooks & Brooks, for appellees.
Appellees, trustees of said lodge, sued appellant to recover damages on account of destruction of property by fire alleged to have resulted from appellant's negligence. The property destroyed was a building in the town of Tunnelton, Lawrence county, Ind., owned by the Knights of Pythias Lodge of said town, together with certain furnishings and paraphernalia belonging to the members of said lodge. A substituted complaint in three paragraphs, with a general denial to each, present the litigated issues tendered by the pleadings.
The appellee Hartford Fire Insurance Company was upon motion of appellant made a defendant to answer as to its interest in the cause of action on account of its having insured a part of the property destroyed, and because, under its policy, it had the right, under certain conditions, to be subrogated to the rights of its coappellee for the amount of insurance paid to it. Said insurance company filed a cross-complaint, setting up substantially the same cause of action against appellant as that alleged in the complaint, and claiming the right to be subrogated to the rights of its coappellee to the extent of the insurance money paid to it. No question is raised as to the sufficiency of either the complaint, or cross-complaint, nor is the right of the said insurance company to subrogation as prayed questioned, and no further notice of its connection with the case need be taken. A trial by jury resulted in a verdict for appellee in the sum of $2,500, on which the judgment herein appealed from was rendered. A motion for new trial was overruled, and the ruling on this motion presents the only error assigned and relied upon.
The grounds of this motion first discussed relate to the instructions. It is urged that error resulted, harmful to appellant, on account of refusal of the court below to give each of certain instructions tendered by appellant, and on account of the court on its own motion giving certain other instructions. No good purpose could be served by copying into this opinion, in whole or in part, the several refused and given instructions upon which such errors are predicated, together with the opinion of the court thereon.
[1] It is sufficient to say generally, with reference to the instructions given in the case, that, when taken as a whole, they correctly and accurately state the law applicable to the entire case. They are eminently fair and gave to appellant no ground for complaint, but, on the contrary, gave it the advantage of every principle of law favorable to its contention which could be said to be applicable either to the facts upon which appellee had the burden of proof, under the complaint, or applicable to the facts of any phase of the defense presented by the evidence.
[2] As to the refused instructions, they were in the main a correct statement of the law applicable to the case, but, in so far as they were correct and applicable, they were completely covered by others given by the court, and to have given those refused would have involved repetition, which is a practice to be criticised rather than encouraged. It is not necessary to repeat an instruction already given simply because it appears among those tendered by one of the parties to the suit. Home Ins. Co. v. Sylvester, 25 Ind. App. 207, 214-215, 57 N. E. 991;Oil Well Supply Co. v. Priddy, 41 Ind. App. 200-204, 83 N. E. 623;New York, etc., R. Co. v. Flynn, 41 Ind. App. 501-503, 81 N. E. 741, 82 N. E. 1009. “It is settled law in this state that instructions are considered with reference to each other, and as an entirety, and not separately or in dissected parts, and, if the instructions as a whole correctly and fairly present the law to the jury, even if some particular instruction, or some instruction standing alone, or taken abstractly and not explained or qualified by others may be erroneous, the cause will not be reversed.” See Eacock v. State, 169 Ind. 488, 507, 82 N. E. 1039;Rains v. State, 152 Ind. 69-74, 52 N. E. 450;Shields v. State, 149 Ind. 395-406, 49 N. E. 351;Indianapolis, etc., Co. v. Miller, 40 Ind. App. 403, 407, 82 N. E. 113;Indianapolis, etc., Co. v. Bennett, 39 Ind. App. 141, 143, 79 N. E. 389;Cleveland, etc., Co. v. Heinman, 46 Ind. App. 388-392, 90 N. E. 899;Sterling v. Frick, 171 Ind. 710, 715, 86 N. E. 65, 87 N. E. 237.
[3] Lastly it is urged that the verdict is contrary to law, and not sustained by sufficient evidence. Counsel upon this question say that they ...
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