Evansville & I.R. Co. v. Darting

• Court: Indiana Appellate Court
• Writing for the Court: GAVIN
• Citation: Evansville & I.R. Co. v. Darting, 6 Ind.App. 375, 33 N.E. 636 (Ind. App. 1893)
• Decision Date: 17 March 1893
• Parties: EVANSVILLE & I. R. CO. v. DARTING.

6 Ind.App. 375

33 N.E. 636

EVANSVILLE & I. R. CO.

v.DARTING.

Appellate Court of Indiana.

March 17, 1893.

Appeal from circuit court, Clay county; S. M. McGregor, Judge.

Action by Franklin J. Darting against the Evansville & Indianapolis Railroad Company to recover for personal injuries inflicted by the fellow passengers of plaintiff through defendant's negligence. There was judgment for plaintiff, and defendant appeals. Affirmed.

Iglehart & Taylor and Geo. A. Knight, for appellant. Jas. A. McNutt and Fisher & Payne, for appellee.

GAVIN, J.

This is an action to recover damages by reason of an assault and battery upon appellee by a fellow passenger, negligently permitted by appellant. The only objections urged to the complaint are that it fails to show that the train boarded by appellee was a passenger train, and that he was a passenger. While these facts are not directly alleged in so many words, they are plainly apparent, and are necessarily included, when all the allegations of the complaint are considered, and this is sufficient to withstand demurrer. Byard v. Harkrider, 108 Ind. 376, 9 N. E. Rep. 294; Douthit v. Mohr, 116 Ind. 482, 18 N. E. Rep. 449.

Under the motion for new trial, objection is made to a part of one instruction given, upon the ground that it contains a statement of a principle of law outside of the real issue in the case. Granting this to be true, we do not think that any harm could have resulted to appellant therefrom. The correctness of an instruction is not to be determined by dissecting it, and considering separately each detached part, but it is to be considered as a whole, and, thus considered, we are satisfied the jury could not have been and were not misled by the announcement of the proposition of law complained of, even though in itself irrelevant to the case in hand. Railroad Co. v. Kelly, 92 Ind. 371; Elliott, App. Proc. 570.

It is also insisted quite earnestly that the verdict of the jury was not sustained by the evidence. We have considered the evidence carefully, and are satisfied that there was abundant evidence to sustain the verdict on all material points. The evidence fairly proves that appellee purchased his ticket entitling him to ride on appellant's passenger train; that he entered the train, took a seat in the front end of the car, and surrendered his ticket to the conductor; that a fellow passenger endeavored to get up a quarrel with him, and finally, after considerable discussion and...