Indianapolis, Cincinnati, & Lafayette Railroad v. Dunden

Downey, J. The errors assigned in this case present two questions for our consideration; first, the propriety of the action of the court in striking out the second paragraph of the answer; and, second, in refusing to grant a new trial on the application of the defendant. The action was brought to recover damages for the death of the infant child of the plaintiff, caused, as alleged, by the negligence of the defendant, on the Martinsville Railroad, which was being run and controlled by the defendant. The defendant answered in two paragraphs; first, the general denial; and, second, a special paragraph. The special paragraph was stricken out, on motion of the plaintiff. There ' was a trial by jury, verdict for the plaintiff, motion for a new trial by the defendant overruled, and judgment on the verdict. The question relating to the striking out of the second paragraph of the answer is not presented by bill of exceptions, and is not therefore before us, so as to enable us to decide it. Oiler v. Bodkey, 17 Ind. 600. There are other cases. The reasons for a new trial are as follows: first, because [360] the verdict is not sustained by sufficient evidence; second, because the verdict of the jury is contrary to law; third, because the damages assessed by the jury are excessive. E. H. Davis and C. Wright, for appellant. B. F, Love, B. F. Davis, and J. Odell, for appellee. The evidence does not present a case which would justify this court in reversing the action of the circuit court in refusing to grant a new trial. The damages found by the jury were four hundred dollars. This was not excessive. Counsel for appellant argue questions not presented. The admissibility of certain evidence and the giving and refusing of'instructions, the questions most discussed by them, are questions not presented in the motion for a new trial, and hence not properly reserved for our consideration. Buell v. Shuman, 28 Ind. 464. There are many other cases. The judgment is affirmed, with costs and five per cent, damages.