*547On Petition for Rehearing.
Roby, C. J.Appellant, in support of its petition for rehearing, criticises the statement of fact made in the opinion as to the time when and the conditions under which the motorman made the statement received in evidence, over its objection.
13. If the testimony referred to in the brief was all the testimony in the case, this criticism might be well taken, but it is not, and the opinion of necessity is based upon that portion of the evidence and those inferences deducible therefrom which are most favorable to appellee. If, however, it were conceded that the evidence objected to was incompetent, the error in its admission would not be available, for the reason that appellant had previously thereto, on cross-examination of the witness Justus, elicited the same facts. Upon the direct examination of this witness, appellee’s counsel asked him what the motorman said. An objection being made the question was withdrawn. On cross-examination he was asked: “What did you hear Mr. Bobrink say?” This question being answered, the next one was: “What was it you say that the motorman said ?” The next one: “What was it the motorman said about the rain?” Had the answers to the questions thus asked been favorable to appellant, it would have had the benefit of them; being unfavorable, it is not in position to complain of testimony upon the subject thus introduced by it. Perkins v. Hayward (1890), 124 Ind. 445; Campbell v. Conner (1896), 15 Ind. App. 23; Blough v. Parry (1896), 144 Ind. 463, 481.
This case was tried by a jury and at the same time by the learned judge of the Ohio Circuit Court. The verdict of the jury has received the approval of the judge, and it is not for this court to say that it ought not to have been so approved.
Petition for rehearing overruled.