OPINION
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 Co., 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 Co., with the track, cars, locomotives and other
appurtenances thereto belonging, and was a common carrier of
passengers 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 now 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.
"Doctor,
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 ground 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....