Such an objection is tantamount to the general objection that it is immaterial, incompetent, and does not tend to prove any issue in the case. As stated by the Supreme Court of Indiana in the case of Vanosdol, Receiver v. Henderson, Admr. (1939), 216 Ind. 240, 22 N.E.2d 812, at 216 Ind. page 249: ". . . This testimony was admitted over the general objection that it was incompetent and immaterial and did not tend to prove any issue in the case.
Statutes creating rights not given by the common law are strictly construed, and one seeking relief thereunder must bring himself clearly within the terms of the statute. Shake v. Board of Commissioners, 210 Ind. 61, 1 N.E.2d 132 (1936); Vanosdol, Receiver v. Henderson, Admr., 216 Ind. 240, 22 N.E.2d 812 (1939). If one cannot bring himself within the terms of the statute, i.e., base his action either wholly or in part upon the statute, it is difficult to find any rational justification for including the statute in an instruction which has the effect of telling the jury that violation of the statute may be the basis for a recovery. "Instructions should not only state correct principles of law, but they should be applicable to the issues and facts of the particular case in which they are given."
The failure of the Railway Company to give such signals not only is negligence per se on the part of the Railway Company, but is a fact which the jury may properly consider, together with other pertinent facts, in determining the question of whether appellant was guilty of contributory negligence as he approached said crossing and prior to the time he saw or could have seen the approaching train. Pittsburgh, C. C. and St. L. Ry. v. Terrell (1911), 177 Ind. 447, 95 N.E. 1109; Van Osdol v. Henderson (1939), ante p. 240, 22 N.E.2d 812, 818. Under all of the facts of this case it was a question of fact for the jury as to whether appellant was guilty of contributory negligence in his manner of approaching said crossing.
The exhibit was potentially relevant on the question of exemplary damages and the mere objection that it was irrelevant and beyond the issues is insufficient as a predicate for harmful error. Vanosdol v. Henderson (1939), 216 Ind. 240, 22 N.E.2d 812; Altmeyer v. Norris (1954), 124 Ind. App. 470, 119 N.E.2d 31. Having disposed of these preliminary contentions, I would turn to the assertion that the damages, both compensatory and exemplary, were not sustained by the evidence, were contrary to law, and were excessive.
Craig v. Citizens Trust Company (1940), 217 Ind. 434, 26 N.E.2d 1006. See also, Vanosdol v. Henerson (1939), 216 Ind. 240, 22 N.E.2d 812. VI
These general objections were too vague to raise any question on appeal. Schoby v. Smith, 142 Ind. App. 483, 235 N.E.2d 495 (1968); Beaty v. Donaldson, 136 Ind. App. 269, 200 N.E.2d 233 (1964); Vanosdol, Receiver v. Henderson, Adm., 216 Ind. 240, 22 N.E.2d 812 (1939). A general objection may be sustained only where the evidence is patently not admissible on any basis.
The law is well settled in Indiana that where special interrogatories are submitted to the jury, it is proper for counsel to read and comment on them to the jury, and to 2. array the evidence necessary to be considered in answering them. Gresley v. The State, ex rel. Neireiter (1890), 123 Ind. 72, 24 N.E. 332; Clear Creek Stone Co. v. Carmichael (1906), 37 Ind. App. 413, 73 N.E. 935; Pittsburg, etc. R.Co. v. Lightheiser (1907), 168 Ind. 438, 78 N.E. 1033; Vanosdol, Receiver v. Henderson, Admr. (1939), 216 Ind. 240, 22 N.E.2d 812. It should be noted that in the above cited cases error was predicated upon the fact that the trial court had allowed counsel to read the interrogatories to the jury and to array the evidence having a bearing upon them.
An answer of "no evidence" amounts to a finding against the party having the burden of proving the facts inquired about. Vanosdol, Receiver v. Henderson, Adm. (1939), 216 Ind. 240, 22 N.E.2d 812; Indianapolis Abattoir Co. v. Temperly, (1903), 159 Ind. 651, 64 N.E. 906; Chicago etc. R.R. Co. v. Wilfong, (1910), 173 Ind. 308, 90 N.E. 307; Cleveland etc. R.R. Co. v. Hayes, (1906), 167 Ind. 454, 79 N.E. 448; Superior Meat Products v. Holloway (1943), 113 Ind. App. 320, 48 N.E.2d 83. Some of the interrogatories were not as clearly worded as they might have been, but construing them as the jury could reasonably do, we find that the jury's answers are supported by the evidence and are not in conflict.
Schackelford v. Commercial Motor Freight, Inc., Ohio App. 1945, 65 N.E.2d 879, 880; Warruna v. Dick, 261 Pa. 602, 104 A. 749, 750. Crowley v. Dix, 136 Conn. 97, 68 A.2d 366, 368; Consolidated Coach Corporation v. Earl's Adm'r, 263 Ky. 814, 94 S.W.2d 6, 9, 10; Vanosdol v. Henderson, 216 Ind. 240, 22 N.E.2d 812, 816 and references cited therein. Sonnenburg v. Monumental Motor Tours, 198 Md. 227, 81 A.2d 617; Tamagno v. Conley, 1948, 322 Mass. 218, 76 N.E.2d 637; Burkes v. Lieberman, 218 App. Div. 600, 218 N.Y.S. 593; Presser v. Dougherty, 239 Pa. 312, 86 A. 854; Williams v. Hemphill County, Tex.Civ.App. 1952, 254 S.W.2d 839; See also Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505.
Our courts have held in many cases that objections to evidence to be available for review must be reasonably specific and that a general objection that the evidence sought to be solicited 7. by a question is immaterial, irrelevant, incompetent or improper does not afford a basis for a review on appeal. Vanosdol, Receiver v. Henderson, Admr. (1939), 216 Ind. 240, 22 N.E.2d 812; City of Michigan City v. Werner (1916), 186 Ind. 149, 114 N.E. 636; The Evansville and Richmond Railroad Company v. Fettig (1891), 130 Ind. 61, 29 N.E. 407; Heap v. Parrish (1885), 104 Ind. 36, 3 N.E. 549; The Louisville, New Albany and Chicago Railway Co. v. Jones (1886), 108 Ind. 551, 9 N.E. 476; McKinsey v. McKee (1886), 109 Ind. 209, 9 N.E. 771. The record before us affirmatively shows that the objection now raised by the appellant in his briefs and oral argument before the court was not presented to the trial court, and, 8. therefore, the objection cannot be considered here on appeal for the first time.