Opinion
No. 15,730.
Filed November 24, 1936.
1. APPEAL — Briefs — Points and Authorities — Application to Specific Error. — Where appellant assigned error in giving several instructions, setting out three "reasons" for error without applying them to any specific instruction was not a compliance with the rule requiring assignments to be "separately considered by separately numbered propositions." p. 661.
2. NEGLIGENCE — Proximate Cause — Question of Fact or Law — Conflicting Evidence. — Where there was sufficient evidence to support a finding either that an approaching automobile was or was not the proximate cause of an injury, the question was one of fact for the jury. p. 661.
3. APPEAL — Briefs — Points and Authorities — Duty to Point Out Specific Error. — Assigned errors in refusing to give certain instructions were waived where appellant's brief set out no reasons why such refusal was claimed to be error. p. 661.
From Marshall Circuit Court; Albert B. Chipman, Judge.
Action by Maud Cottrell, administratrix of the estate of Arthur Cottrell, deceased, against Willis C. Lorenz. From a judgment for defendant, plaintiff appealed. Affirmed. By the court in banc.
William J. Reed, for appellant.
Lee L. Osborn, Kenneth D. Osborn and J. Allen Lampman, for appellee.
This is an appeal from a judgment for appellee, defendant, below, in an action by appellant for damages on account of the death of Arthur Cottrell (appellant's husband), alleged to have been caused by the negligence of appellee.
The evidence showed that Arthur Cottrell was walking on State Highway No. 29, about one mile north of Knox, Indiana, after dark, and was struck by an automobile being driven by appellee, immediately after appellee was blinded by the bright lights of another automobile approaching from the opposite direction.
The issues were formed by a complaint and an answer in general denial. The cause was tried by the court and jury, and the jury returned a verdict in favor of appellee.
This is an appeal from the judgment rendered on said verdict, the sole error relied upon for reversal being alleged error in overruling appellant's motion for new trial.
Appellant's proposition one is in effect that the evidence shows as a matter of law that appellee's negligence was the proximate cause of decedent's death; appellant's proposition two is in effect that the evidence shows as a matter of law that decedent was not guilty of contributory negligence.
All of appellant's other propositions relate to the giving or refusal to give certain instructions.
As her third proposition appellant contends, "The court erred in giving instruction number seven of its own motion, and in giving each of defendant's instructions number one to 1. eighteen inclusive." In support of said contention appellant merely states three "reasons." No application of any of said "reasons" is made to any of said instructions. This is not a compliance with the provision of Clause Six, Rule 21 of this court, which requires assignments to be "separately considered by separately numbered propositions," and therefore the error, if any, will be deemed waived.
As a fourth proposition appellant complains of the giving of a certain instruction relating to the proximate cause of the accident, "for the reason that the question of whether or 2. not the car approaching from the north as stated in the instruction was the proximate cause of the injury was a question of law for the court."
The evidence relating to that question was such that it would support a finding that said car was the proximate cause of the accident, and would support a finding that said car was not the proximate cause of it, therefore the question was one of fact, and appellant's said propositions numbered one, two, and four are not sustainable.
In none of appellant's other propositions does she give any reason why the giving or the refusal to give the respective 3. instructions is erroneous, therefore the errors, if any, are deemed waived.
Although this court was not required to do so, we have read and considered the evidence and the instructions given to the jury, and we are of the opinion that the verdict is sustained by the evidence, and that the jury was sufficiently and fairly instructed.
No reversible error having been shown, the judgment is affirmed.