Southern Indiana Gas & Electric Co. v. Storment

• Decision Date: 02 January 1934
• Docket Number: 25,791
• Citation: 188 N.E. 313,206 Ind. 25
• Parties: Southern Indiana Gas & Electric Company v. Storment
• Court: Indiana Supreme Court

188 N.E. 313

206 Ind. 25

Southern Indiana Gas & Electric Company v. Storment

No. 25,791

Supreme Court of Indiana

January 2, 1934

From Warrick Circuit Court; Caleb J. Lindsey, Judge.

Action by Margaret Storment against Southern Indiana Gas & Electric Company for personal injuries. From a judgment for plaintiff defendant appealed. Transferred from Appellate Court under § 1351, Burns 1926, § 1364 Baldwin's 1934.

Affirmed.

W D. Robinson, William E. Stilwell and Roscoe Kiper, for appellant.

T Morton McDonald, for appellee.

OPINION

Fansler, J.

This is an action by appellee to recover damages for personal injuries resulting from being thrown in alighting from a car. The injuries were alleged to have consisted of an injury to her arm and the nerves thereof, hip, knee, and the impairment of the use of these members. There was a verdict and judgment for $ 2,500.00.

Appellant complains of the court's refusal to permit the attending physician to testify that he took only two stitches in appellee's elbow. In answer to the question: "How many stitches did he take?" the appellee answered in chief: "I think six or seven. I am not sure." In cross-examination she was asked the following questions and gave the following answers:

"Q. And all he did there was to take some stitches in a slight abrasion on your arm? A. He examined my arm.

"Q. I'm asking you if that isn't what he did? A. He took several stitches in my elbow."

It is contended by the appellant that by the questions and answers in chief the appellee waived the statutory provisions disqualifying her physician as a witness, but if the testimony be construed as a waiver it was only upon the question of the number of stitches taken, which it appears was not important to the issue.

The appellee alleged, and offered evidence to prove, that the nerves controlling some of her fingers in the injured arm were affected so as to affect the use of the fingers. The same medical witness testified in detail about the effect of an injury to these nerves. The appellee did not testify definitely as to the number of stitches, and it does not appear that the appellant could have been harmed by a refusal to permit the testimony, even though the privilege be considered as waived.

Appellant complains of Instruction No. 1 given by the court on its own motion, and contends that it authorized the jury to find for the plaintiff, regardless of any defense that might have been proved by the defendant. The instruction, after describing the character of the issues, said: "the burden is on the plaintiff to prove by a fair preponderance of the evidence, every material allegation of the complaint before you would be authorized in finding for the plaintiff."

It does not instruct them that if the material allegations are proved they should find for the plaintiff, and is not open to the objection urged. Instruction No. 9 is as follows "Contributory negligence, which is a defense, is negligence on the part of the plaintiff or injured person which causes or partly causes his injury. If an injured person does or omits to do some act or thing which a reasonably careful and prudent person would have done or omitted to do under the same or like circumstances and such act or omission causes or partly causes or contributes to his injury, this...