Lower v. Franks

On Petition eor a Rehearing.

Niblack, C. J.

The appellees in their orginal brief made-the point that the instructions copied into the transcript, and-purporting to have been given at the trial, had not been properly made a part of the record, and that, consequently, this appeal presented no question upon any of those instructions. Without making a distinct ruling upon the point thus made, we considered the instructions at the hearing,, and, as has been seen, set out, and passed judgment upon one of them upon the assumption that it had been made and was a part of the record.

The further point was made that there was nothing connected with the instructions, as they are copied into the-transcript, from which we could infer that they were the only instructions given by the court at the trial, and that hence it does not affirmatively appear that no other instruction was-given either modifying, or, in effect, withdrawing the eleventh instruction, which we have held to be erroneous.

*339By a petition fot a rehearing the points thus originally made are renewed, and we now proceed to consider them.

This cause was known as No. 624 in the court below. In noting the proceedings at the trial, the instructions referred to are copied into the transcript at the appropriate place and are made to appear as having been given on the 16th day of April, 1884, the day on which the argument was concluded and the jury retired to consider of their verdict. The instructions are in the form of a series, and have a caption giving the name of the State, the name and term of the court, and the title of the cause, with a heading entitled “ Instructions by the court.” This is followed by seventeen consecutively numbered instructions, signed, at the close of the last one, by the judge who tried the cause. . On the margin of each instruction is written the words ■ “ Given and excepted to by defendants, April 16th, 1884,” which was also signed by thejudge. These instructions are endorsed “No. 624. Instructions. Eiled April 16th, 1884. Merritt C. Skinner, clerk.” These memorandums, signatures and endorsements brought the instructions into the record, under the provisions of section 535, R. S. 1881, without a formal bill of exceptions, and without any order of court making them a part of it. Childress v. Callender, 108 Ind. 394; Fort Wayne, etc., R. W. Co. v. Beyerle, 110 Ind. 100.

Furthermore, in the absence of anything in the record indicating the contrary, the inference ought to be that the instructions given in the form of a series, as above, were all the instructions given by the court, and that they constituted the general instructions of the court required to be given by section 533, R. S. 1881. The inference ought also to be that the instructions were in writing, although’-it was not essential that they should have been so when given, unless required to be by one of the parties.

It is true, as claimed, that this court has frequently held, that where the court below has refused to give an instruction which stated the law correctly and was applicable to the *340facts of the case, but where the record disclosed nothing as to whether any instructions were given, we will presume that the court below did its duty, and gave general instructions covering all the matters in controversy, and. will not reverse the judgment upon the ground that the instruction may have been refused because the subject-matter of it had already been given to the jury.

Filed July 10,1888.

That rule of practice has, however, no application to the case before us, where a series of general instructions was given, and one of the series is adjudged to be erroneous. The giving of a fatally erroneous instruction can only be cured by a plain withdrawal of the instruction, and the withdrawal of such an instruction will not be presumed, but must be affirmatively shown. Kingen v. State, 45 Ind. 518 ; Toledo, etc., R. W. Co. v. Shuckman, 50 Ind. 42; Binns v. State, 66 Ind. 428.

It is still further insisted that the verdict was so clearly right upon the evidence that it ought not to be disturbed notwithstanding the erroneous instruction set out in the opinion. ■While much of the evidence was entirely favorable to the appellees, there was a sharp conflict in the evidence in other respects, and hence the case presented was one in which the jury should have been very carefully and correctly instructed.

We have made some verbal corrections and changes in that part of the opinion which treats of the question of contributory negligence, not affecting any of the conclusions originally announced, and with the opinion as it now stands we are content.

The petition for a rehearing is, therefore, overruled.