Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Lynn
| Decision Date | 27 January 1909 |
| Docket Number | 21,239 |
| Citation | 86 N.E. 1017,171 Ind. 589 |
| Court | Indiana Supreme Court |
| Parties | Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Lynn |
Original Opinion of November 6, 1908, Reported at: 171 Ind. 589.
Appellee has filed his petition, supported by an able brief, for a rehearing in this cause, on the ground that this court erred in holding that there is a conflict between instruction ten, given at the request of appellee, and instruction nineteen, given at the request of appellant; in holding, or intimating, that instruction ten is not a correct statement of the law applicable to the facts and the evidence; in holding, or implying, that it is not necessary for the court to pass upon the correctness of instruction nineteen; in holding, or implying, that appellant, by requesting instruction nineteen, claimed by appellee to be erroneous and in conflict with instruction ten, was entitled to a reversal though inviting the error; and in reversing the judgment by reason of alleged conflict between instruction ten, asked by appellee and given, and claimed to be correct, and instruction nineteen, given at the request of appellant, and now claimed to be incorrect.
In the original briefs of the parties, appellant did not make the point, or cite any authority, or discuss the question, as to whether instruction ten was erroneous or not, but made the point and presented the question only of the two instructions being inconsistent and calculated to mislead the jury. Appellee contented himself with the insistence that instruction ten was good, and that it was not in conflict with instruction nineteen, and did not even suggest that nineteen was not a good instruction; on the contrary, tacitly conceded that it was.
While the court might not refuse to entertain a petition for a rehearing predicated upon points not raised in the original points or briefs, if to do so would work manifest injustice, we do not think this is such a case.
It was upon the presentation made by the parties that the original opinion was based, and was the reason for the language employed in the opinion, when the court said: "We are not called upon to determine whether instruction nineteen should have been given," etc., for, as presented, the conflict between the two instructions is manifest, and, taken together, could lead to but one result.
The petition for rehearing is overruled.
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