On Petition for a Rehearing.
Hackney, J.Counsel for the appellee have presented an earnest and able petition for a rehearing, to which we have given careful consideration.
It is insisted that in adopting imperfectly the method of excepting to instructions, as provided by section 535, R. S. 1881, the appellant was precluded from employing another method of reserving exceptions- to such instructions, namely, by a formal bill of exceptions. This contention rests upon the doctrine that where two or more remedies are given by the law for the enforcement of a right, the election of one of such remedies is an exclusion of any other, as where the remedy employed is by suit to review the right of appeal is thereby cut off.
This doctrine has no application to the mere incidents of practice, but applies to remedies, and has for its object the securing of a final determination of a controversy by one decision and the avoidance of vexatious litigation where one remedy is exhausted and another is then employed for the enforcement of but one right of action.
With the practice of reserving exceptions to instructions, and making them a part of the record, section 534, R. S. 1881, has nothing to do, as that section was designed to enable the parties to learn, before arguing a cause, what instructions would be given, and to permit such instructions to be read as a part of the arguments.
It is further complained that in our holding that the trial court should have given the instruction that there was a failure of proof upon two of the elements of negligence alleged, we stand in conflict with the holding in *29Wabash, etc., R. W. Co. v. Morgan, 132 Ind. 430, where an instruction was asked to the effect that there was a failure of proof to show incompetency and negligence on the part of an engineer, etc., which instruction was refused and the refusal sustained. In that case the evidence is not discussed with relation to the instruction, and we are not enabled to say that there was a failure of proof upon the question to which the instruction was addressed.
The suggestion in that case that the instruction was properly refused, under the averments of the complaint, and that the appellee might have recovered by reason of •'defects in'the engine, can certainly have no application to the question as to whether an instruction was proper, taking an element of the case from the jury because of a failure of evidence upon such element. If that case could be said to conflict with the proposition, then-where there is a failure of evidence upon an element of a case, the court may take such element from the jury and thereby prevent a hodge-podge verdict, we would not hesitate to depart from it.
Upon the remaining questions discussed by counsel, we have said all that we deem necessary in the original opinion.
The petition for a rehearing is overruled.
Filed May 17,1894.