Louisville, New Albany & Chicago Railway Co. v. Schmidt

Olds, J. — This is an action for damages for negligence on the part of the appellant, whereby the appellee was injured at a street crossing, in the city of New Albany. The case was once tried, resulting in a verdict and judgment against the appellant, and appeal taken to this court, and reversed for the insufficiency of the second paragraph of the com [291] plaint. Louisville, etc., R. W. Co. v. Schmidt, 106 Ind. 73. After the case was certified back the second páragraph of the complaint was dismissed by the appellee, and the cause retried on the first paragraph of the complaint, resulting in a verdict and judgment for the appellee, from which this appeal is prosecuted. The only question discussed by counsel for appellant in their brief is the sufficiency of the second paragraph of the complaint, alleging that the second trial was had upon the second paragraph. Since the filing of the appellant’s brief the record has been corrected and properly certified, showing that the cause was dismissed as to the second paragraph, and that the second trial was had on the first paragraph. Since the correction of the record counsel have had ample time to correct their brief, and discuss any questions they desired. Filed Sept. 17, 1890. Counsel for appellant having failed to discuss any question presented by the record, they have waived any that may have been involved by their assignment of error. Judgment affirmed, with costs.