Chicago Terminal Transfer Railroad Company v. Walton
| Decision Date | 30 June 1905 |
| Docket Number | 20,347 |
| Citation | 74 N.E. 1090,165 Ind. 253 |
| Parties | Chicago Terminal Transfer Railroad Company v. Walton |
| Court | Indiana Supreme Court |
From Lake Superior Court; Harry B. Tuthill, Judge.
Action by John W. Walton against the Chicago Terminal Transfer Railroad Company. From a judgment on a verdict for plaintiff for $ 1,500, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
Jesse B. Barton and John B. Peterson, for appellant.
Crumpacker & Moran, for appellee.
This action was brought by appellee to recover damages for personal injuries received by his infant son through the alleged negligence of appellant.
The errors assigned are: (1) The court erred in overruling appellant's demurrer to appellee's first paragraph of amended complaint; (2) the court erred in overruling appellant's demurrer to the second paragraph of appellee's amended complaint; (3) the court erred in overruling appellant's motion for a new trial of said cause.
Appellee insists that appellant has failed to comply with the requirements of rule twenty-two in the preparation of its brief. Appellant has failed to set forth in its brief a copy of the demurrer, the substance, a succinct statement or ground thereof, as required by clause five of rule twenty-two of this court. For this reason the first and second assignments of error are waived. Perry etc., Stone Co. v. Wilson (1903), 160 Ind. 435 437, 67 N.E. 183. It has been uniformly held by this court that said rule requires that the brief be so prepared that all questions presented by the assignment of errors can be determined by an examination of the briefs, without looking to the record, and that, to the extent said rule is not complied with, the same will be considered waived. Wolverton v. Wolverton (1904), 163 Ind. 26, 71 N.E. 123; Lake Erie, etc., R. Co. v. Shelley (1904), 163 Ind. 36, 71 N.E. 151. If the demurrer, the substance, a succinct recital or the ground thereof is not set forth in the brief, we can not from an examination thereof know that the trial court erred in overruling the same, as it may have been overruled because the ground stated in the demurrer was one which it was proper to overrule. Aydelott v. Collings (1896), 144 Ind. 602, 603, 604, 43 N.E. 867; Jones v. Mayne (1900), 154 Ind. 400, 402, 55 N.E. 956; Zimmerman v. Gaumer (1899), 152 Ind. 552, 555, 556, 53 N.E. 829, and cases cited; Sheeks v. State, ex rel. (1901), 156 Ind. 508, 509, 60 N.E. 142, and cases cited.
It is insisted by appellant that appellee was guilty of contributory negligence. Under the evidence given in...
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