Goldblatt Bros., Inc. v. Parish
| Decision Date | 23 December 1941 |
| Docket Number | No. 16464.,16464. |
| Citation | 38 N.E.2d 255,110 Ind.App. 368 |
| Parties | GOLDBLATT BROS., Inc., v. PARISH et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Porter County; Mark B. Rockwell, Judge.
On petition for rehearing.
Petition denied.
For former opinion, see 33 N.E.2d 835.Call & Call, of Gary, and Pritzker & Pritzker and William A. Goldman, all of Chicago, Ill., for appellant.
Galvin, Galvin & Leeney, of Hammond, for appellees.
In his petition for rehearing, appellant properly contends that this Court failed to discuss alleged error of the trial court in giving to the jury instructions Nos. 20 and 23, on its own motion.
Instruction No. 20 informed the jury as to intervening agency and as to when such intervening agency will be treated as the sole proximate cause of the injury. The instruction also applied the rule of intervening agency to the instant case and stated: “* * * and if you further find from all the evidence in this cause that such mother of the plaintiff did not use due and ordinary care in caring for such fire works and in returning them to the plaintiff such as an ordinary prudent person would do under the same or like circumstances, then you will find that said mother was negligent.”
[1][2] While it is true as contended by appellant than an intervening agent need not do, nor commit a negligent act in order for it to break the causal relation between the original act of negligence complained of and the injury, we cannot see how appellant was harmed by this instruction. In fact it is more favorable to appellant than to appellee to instruct the jury that the fact that the mother of plaintiff did not use care in returning the fireworks to her son would of itself establish negligence on her part. We find no error in the giving of this instruction.
[3] Instruction No. 23 informed the jury as to ordinary care and applied the principle to the appellant as a seller of merchandise. It is contended that such instruction assumed that all fireworks are dangerous and injurious. We are of the opinion that this instruction is not subject to criticism on the grounds stated and that the jury was not misled thereby.
Appellant calls attention to the statement in our opinion as follows: “We can see no merit in this contention in as much as appellee dismissed said first paragraph of complaint.” This statement is erroneous and the original opinion is modified by insertion of a period after the word “content...
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Peckham v. Smith
...et al.) 1944, 222 Ind. 330, 53 N.E.2d 165, 53 N.E.2d 769; Goldblatt Bros., Inc. v. Parish, et al., 1942, 110 Ind.App. 368, 33 N.E.2d 835, 38 N.E.2d 255. In our opinion appellant could not have been harmed by this instruction. No authorities are cited in support of the contentions of error i......
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Ewing v. Timmons
...al.) (1944), 222 Ind. 330, 53 N.E.2d 165, 53 N.E.2d 769; Goldblatt Bros., Inc. v. Parish, et al., 1942, 110 Ind.App. 368, 33 N.E.2d 835, 38 N.E.2d 255.' (Our The giving of appellees' instruction number one coupled with the refusal of the court to give appellant's instruction number five lef......