On Petition for a Rehearing.
Elliott, J.This case was orally argued and was also-argued by appellant’s counsel in two printed briefs of more than one hundred and fifty pages, and now, on the petition for a rehearing, they have filed an additional brief of nearly forty printed pages, but discuss no question not before discussed by them and decided by us, though they make many assertions which, if correct, would convince us that our former *431opinion was erroneous; as, however, assertions are not arguments, we can not yield our convictions.
We held in the previous opinion, that as the trial court had offered to sustain appellant’s motion to strike out part of Dr. O’Ferrall’s testimony, and as appellant had resisted and had withdrawn the motion, which was afterwards renewed by the appellee and sustained by the court, appellant had no just reason to complain. We confess our inability, notwithstanding the abundance of assertion, to see anything in appellant’s criticism on our ruling that bears any resemblance to reason. If there is any rule of practice that will permit a party to successfully complain, where the trial court offers to sustain a motion made by him, it has certainly hitherto escaped the notice of the courts and law-writers. It is said by counsel : “ Will the court countenance a motion of this character where it shows on its face that it is a mere pretext to avoid the error of the admission of incompetent evidence put in such a shape as not in fact to advise the jury of what was stricken out, but left so that the testimony pretended to be stricken out had its full force and effect with the jury, which error the trial court intensified and enhanced by permitting the opinion founded thereon to stand ? ” This question, like much else in the brief, contains assertions that are without support, and in this instance these assertions are not just to' the trial court, to opposing counsel, or to this tribunal. There was nothing on the face of the motion which showed it to be a mere pretext, nor was there anything done by the trial court to mislead the jury. The opposing counsel offered to permit the motion made by the counsel of the appellant to be sustained just as they had made it; they refused and withdrew the motion, so that if they did not secure what they desired, the fault was their own. It was not for the trial court nor for opposing counsel to suggest to the learned counsel what it was that they wanted; it was enough to offer them what they asked.
We need not follow counsel in their discussion of the ques*432tions which might, perhaps, have arisen on Dr. O’Ferrall’s testimony, if proper objections had been made and exceptions reserved; but as no such objections were made, there is no question presented for our decision. We may, however, remark of counsel’s criticism on the opinion in Cleveland, etc., R. R. Co. v. Newell, ante, p. 264, that the doctrine there declared rests .on solid principle, and is sustained by the decisions of the ablest courts of the land, as appears from the cases there cited, and from those referred to in our former opinion in this case.
It is asserted by counsel that we were in error in referring to the fact that Dr. Webster expressed an opinion. To this assertion of counsel a quotation from the record shall be our answer. On direct examination the counsel asked Dr. Webster this question : “ What, in your medical opinion, Doctor, is the usual cause of such a phenomenon ? ” Answer. “ Syphilis is the usual cause.” Counsel say: “We despair of getting the law correctly enunciated unless we can get this court to look at the facts, and with this end in view we make the following extracts from Dr. Webster’s testimony.” Not stopping to speak in censure, as, perhaps, we should of the impropriety of this statement, we pass it with the remark that it is counsel, and not the court, that have overlooked the facts which appear in the record. Counsel print part of the examination of Dr. Webster, but only part, while we read his entire testimony. The opinion called for by counsel’s question is not in the part of Dr. Webster’s testimony printed in the brief, but, for all that, it is in the record.
The proposition made in our former opinion, that a person injured by the negligence of a carrier may recover although the injury was increased by. a predisposition to disease, is assailed, but no authorities are cited that discuss the question. Our former decision upon this point was fortified by decisions of our own and many other courts, and since that opinion was written we have found others to which it may not be improper to refer. In the very recent case of *433McNamara v. Village of Clintonville, 62 Wis. 207 (51 Am. Rep. 722), the subject is exhaustively discussed, and a great number’ of cases, among them some of our own, 'áre cited. The court there said: “ The predisposition to inflammatory riiehmatism was an intervening cause, but it was set in motion by the tortious act complained of.” The subject was much discussed in Ehrgott v. Mayor, etc., 96 N. Y. 264 (48 Am. Rep. 622), Avhere it Avas said, “ When a party commits a tort resulting in a personal injury, he can not foresee or contemplate the consequences of his tortious act. He may knock & man down, and his stroke may, months after, end in paralysis or in death — results which no one anticipated or could have foreseen. A city may leave a street out of repair, and no one can anticipate the possible accidents which may happen, or the injuries which may be caused.” Again, in the same opinion, it is said: “ While both causes were proximate, that was the nearest and most direct. Still further. It was •certainly impossible for the plaintiff to prove, or for the jury to find how much of the injury Avas due to either cause .alone. It Avas Avholly impossible to apportion the damage between the two causes. Shall this difficulty deprive the plaintiff of all remedy? We ansAver no. The wrong of the defendant placed the plaintiff in this dilemma, and it can not complain if it is held for the entire damage.”
All the cases and all the authors that have given this subject careful consideration, so far as a diligent search in this •and other cases has enabled us to discover, treat the rule laid down in the Squib case as applicable to all cases of negligence ; not an author nor a decision confines it to the case of an intentional tort. 2 Thompson Negligence, 1084; 3 •Sutherland on Damages, 714; Addison on Torts (3d ed.), p. 5; Cooley on Torts, .70. The length of the counsel's brief indicates that they have been industrious at least, and they have cited no case that lends their position the slightest support. A recent writer, from Avhom we quoted in our former *434opinion, says of a position similar to that assumed by the appellant’s counsel, that “ it is the rankest nonsense to say that there is no such immediate connection between the' wrong; and the injury as to entitle the passenger to recover,” and this is said after a very full examination of the adjudged’ cases. 2 Wood Railway Law, 1232. The instruction given by the court upon this subject, if it stood alone, would be correct, and taken, as all our cases and all the text-writers upon the subject say it must be, in conjunction with that given at the request of the appellant, which, by the way, asserts a doctrine utterly at variance with that now contended for, leaves no room to doubt that the jury were properly instructed.
In stating the reason why a rehearing should be granted, counsel say : “ Because counsel for appellant, through inadvertence, failed to call attention to the cases of Chicago, etc., R. R. Co. v. Sykes, 96 Ill. 162, and North Chicago Rolling Mills Co. v. Morrissey, 18 Am. & E. R. R. Cases, 47, where a very different view of what the average intelligence of a juror could fail to understand, is expressed.” The first of those' cases asserts the doctrine of comparative negligence, and condemns an instruction which assumes to state facts which will entitle the plaintiff to recover in an action brought to recover damages for injuries received in attempting to enter a railroad train. . The instruction was condemned because it assumed facts that should have been left with the jury, and because it left the jury at liberty to assess damages at any amount they chose, not exceeding five thousand dollars, irrespective of the' evidence. The doctrine of comparative negligence has always been denied in this State, and there is nothing in our former-opinions, nor in the cases cited from our reports, that affirms that a jury may assess damages irrespective of the evidence, or that the court may usurp the province of the jury by assuming facts, so that the decision under immediate discussion has not the slightest bearing upon this case. . The second of the two cases simply decides that it is error to disregard the question of contributory negligence, and to give an in*435struction allowing a jury to award damages “without the slightest reference to any proof of the amount of damages sustained.” There is nothing in either of those cases that conflicts with the decision in City of Indianapolis v. Scott, 72 Ind. 196, but if those cases did place the intelligence of jurors upon a plane as low as that Avhich counsel would have us do,
Filed Feb. 17, 1886.• Ave should decline to follow them, for the cases in our oavu State, as Avell as elsewhere, declare that jurors are to be treated as men of average intelligence. Union Mutual L. Ins. Co. v. Buchanan, 100 Ind. 63, see p. 74; McDonel v. State, 90 Ind. 320, see p. 327. We are, at all events, quite content to so treat the jurors of Indiana. But, if we should adopt counsel’s theory that the instruction of the trial court Avas understood by the jury to leaAm them at liberty to assess damages irrespective of the evidence, Ave should rate their1 intelligence very Ioav, indeed much lower than that possessed by rational men of the lowest order of intellect.
Petition overruled.