ROSS, J.
The appellee filed her complaint in one paragraph against the appellant, as follows: “The plaintiff, Anna Renicker, complains of the defendant, the Louisville, New Albany and Chicago Railway Company, and says that the defendant is a corporation duly organized under the laws of the state of Indiana, and on the 26th day of June, 1891, owned and operated a certain railroad, known as the Louisville, New Albany and Chicago Railway Company, with the track, cars, locomotives, and other appurtenances thereto belonging, and was a common carrier of passenger for hire between Delphi, in Carroll county, Indiana, and the towns of Rensselaer and Fair Oaks, in Jasper county, Indiana, from which and to which the said railroad was built, operated, and run for a long time before, at, and since said date. That on the said 26th day of June, 1891, the plaintiff, who was then aged nineteen years, purchased of the defendant a first-class ticket from the city of Delphi to the town of Rensselaer aforesaid, and took passage on defendant's regular passenger train. That defendant, by its agents, to wit, its engineer, conductor, and brakeman, so negligently ran and operated said train of cars that the same did not stop at the platform and depot of the defendant at Rensselaer, Indiana, but ran by said platform a distance of six hundred feet before stopping. The plaintiff proposed to the defendant's servants, who were then and there acting in the line of their duty, to try to get off such train, but was assured that the train would back down to the platform, and plaintiff was by said servants, while in the line of their duty, ordered and commanded to keep her seat until the train backed down to the platform, and, in obedience to said directions, the plaintiff made no effort to then get off the train. The defendant's servants, however, unlawfully neglected and refused to back said train to the depot at said station, and started towards Chicago, and, after going some distance, informed plaintiff that the train would stop at Surrey, a distance of five miles from Rensselaer, and the plaintiff consented thereto; whereupon said conductor, brakeman, and engineer of the defendant, while acting in the line of their duty, unlawfully and negligently stopped the train on a grade one mile from Surrey, and with great force and violence commanded and compelled the plaintiff to alight from the said train some six miles from the town of Rensselaer, and one mile from Surrey, and not at any platform or station; and, in attempting to alight, the plaintiff, by the negligence of defendant, was cast suddenly to the ground on an incline, and by reason thereof she sprained, bruised, and injured her ankle, knee, leg, and back to such an extent that she has been helpless and unable to perform labor, and has suffered, and still suffers, bodily pain, to her damage ten thousand dollars; and is also, by reason thereof, crippled and maimed and prevented from actively pursuing business for life, and without any fault or negligence of the plaintiff; and that her said injuries were all caused by the negligence, carelessness, willfulness, and improper acts of the defendant and its servants. Wherefore the plaintiff says she ought to recover ten thousand dollars. The plaintiff alleges that although she is under the age of twenty-one years, yet her father, being a poor man, had before the time of this accident allowed and permitted the plaintiff to work for herself, and now consents that plaintiff prosecute this action in her own name; and plaintiff files herewith her father's relinquishment of his right of action, and his consent to act as her next friend, marked ‘Exhibit A,’ and made a part of this complaint. Wherefore plaintiff demands judgment for ten thousand dollars, and for all other relief.” To the complaint, appellant filed a demurrer for want of facts, which was overruled by the court, and exception saved. There was a trial before a jury, and a verdict for the appellee, assessing her damages at $700. The appellant moved for a new trial. The motion was overruled, and judgment rendered on the verdict in favor of the appellee.
The appellant assigns in this court three errors, but, inasmuch as counsel have not argued the first and second errors assigned, they are waived. The third error assigned is: “The court erred in overruling appellant's motion for a new trial.” The motion embraces the following reasons for which a new trial was asked, viz.: “First. That the evidence wholly fails to prove or establish the averments as alleged in the complaint as amended. Second. That the evidence further changes the theory of the complainant's case, as made and laid in the complaint as amended, and then, even though the evidence gives a right of action, it proceeds upon a different theory than that stated in the complaint. Third. That the plaintiff is not permitted by evidence to change the theory of the case as made in the complaint. Fourth. That, the plaintiff having stated specific acts of negligence, she is required to rely thereon, and, failing thereon, leaves the case as alleged and made in the complaint, without sufficient proof to entitle the complainant to a verdict or judgment. (Motion overruled. Defendant excepts, and thereupon the court overruled said motion, which was error.) Fifth. The court erred in refusing instructions requested to be given the jury by the defendant. Sixth. The court erred in giving instructions asked by the plaintiff. Seventh. The verdict of the jury is contrary to the evidence. Eighth. The verdict of the jury is contrary to the law. Ninth. The verdict of the jury is contrary to, and in disregard of, the instructions given by the court. Tenth. The damages awarded by the jury are excessive. (To all and each of which matters and things and rulings of the court above stated, the defendant then and there objects and takes exceptions thereto, and to each of them severally.) Eleventh. During the course of said trial, the following questions were propounded plaintiff, to which questions the defendant, by its attorneys, then and there objected, and moved to strike out the answers thereto, which questions, objections and reasons therefor, exceptions and answers to such questions, and motions to strike the same and exceptions thereto, were in the words following, to wit: Dr. M. B. Alter: ‘Dr., you may state if you know what the usual results are in restoring the system, after it is wounded or sprained, to a perfect condition, under the ordinary practice among the physicians.’ (The defendant objects to this question upon the grounds that a perfect state of restoration is not necessary; that it is immaterial; that a proper foundation has not been laid, for the plaintiff has not shown that this witness knows the difference between the highest state of restoration possible within his knowledge, and to prove the prior condition of the individual upon which he based his judgment; and the facts upon which opinion is to proceed are not stated; and question does not limit witness to facts proved or stated to jury; and under both of these conditions his evidence is not admissible. Objection overruled.) ‘A. In a country practice, as the physicians are in this town, there are but few cases of fractures or bad dislocations, and, under those existing, there are but very small per cent. of them become perfect.’ Mrs. Eliza Renicker: ‘Q. State what has been her condition, as to being able to do work, say since the 26th day of June, 1891.’ (The defendant objects on the ground it calls for a conclusion. Objection overruled. Defendant excepts.) ‘A. She complained of her knee and her back.’ (Answer stricken out.) ‘Q. What I want to know is how much work she could do. A. She could not do much work. She would complain it would hurt her back if she stood much on her feet.’ (Defendant moves to strike out the part of the answer, ‘she would complain,’ also the part of the answer ‘that it would hurt her back,’ because conclusions. Motion overruled. Defendant excepts.) John Renicker: ‘Q. I will ask you to state to this jury whether or not you visited the place on the railroad where your sister claims that she got off the train. A. Yes, sir. Q. Now, where was that place?’ (Defendant objects. Objection overruled. Defendant excepts.) Samuel B. Thornton: ‘Q. Now, how was the railroad track at this time?’ (Defendant objects to the question because it relates to track and its condition at a time after alleged accident, and therefore not admissible or relevant. Objection overruled. Defendant excepts.) Edgar Thornton: ‘Q. Now, were you informed where she alighted from the cars?’ (Defendant objects. Objection overruled. Defendant excepts.) ‘A. On the grade. Q. How far was that from the station? A. In my judgment, between 95 and 100 rods.’ Grant Renicker: ‘Q. Where did you see her? A. At my brother John's home. Q. Now, you may state whether your brother John was married at that time. A. Yes, sir. Q. You may state if it was the only place she had relatives near Surrey.’ (Defendant objects. Objection overruled. Defendant excepts.) ‘A. Yes, sir. Q. Now, Mr. Renicker, you may state to the jury what your sister has been able to do, in the way of work, since that time, so far as you have observed.’ (Defendant objects to the word ‘able.’) ‘Q. What has she been doing about the house? A. She has not done so very much. Q. State just what you know. A. She was not able to...
