Podell v. BOGER, ETC.

On Petition for Rehearing

Kelley, C. J.

Appellant asks for a rehearing on three stated grounds. The petition therefor contains such misconceptions as to our holding in the primary opinion that it becomes necessary to answer them in writing, to the end that such stated misconceptions may not mislead those who may, perchance, read the opinion.

Appellant first says that we held that she was obligated to set forth in her brief the instructions given by the court. (Appellant apparently refers to instructions withdrawing certain issues from the jury.) We cannot find in the opinion that we so held. We said that appellant did not make the instruction a part of the record and that she raised no question with reference to any instruction. It may be that appellant is *125not one of those who, perchance, may have read the opinion.

Appellant next, as her second charge, avers that we erred in holding that she “was obligated to make specific objections to appellees’ motion to withdraw the question of speed from the jury,” thereby contravening Rule 1-5 of the Supreme Court. We have reviewed the rule referred to. This rule abolished the necessity of taking exceptions to adverse rulings of the court, as was required for the presentation of error prior to the adoption of the rule in 1940. It did not abolish the necessity for proper objections in those procedural instances where such objections are requisite. For instance, it is not necessary to take an exception to the action of the court in refusing a properly tendered instruction but the action of the court in giving an instruction deemed erroneous is available as error only upon oral or written specific objections made thereto. (See Rule 1-7.) Said Rule 1-5 specifically provides that it is not intended “to affect in any manner the present practice in regard to objections.”

Following the holding in Norwalk Truck Line Company v. Kostka (1949), 120 Ind. App. 383, 88 N. E. 2d 799, transfer of which was denied by the Supreme Court on June 10, 1950, we held that the failure of appellant to object to appellees’ motion to withdraw from the jury the issue of negligence (speed) as alleged in specification (a) of appellant’s complaint made any error in the granting thereof unavailable to appellant as a cause for a new trial. We did not state in the opinion that such objection should be specific. We ventured no opinion as to whether such objection should be general or specific. We said, in effect, that appellant had failed to make any objection. Our holding, we think, was not in any way counter to the provisions of said Rule 1-5.

*126The final ground upon which appellant claims we erred was the same as her aforesaid second ground except that it refers to appellees’ motion to withdraw from the jury the issue of negligence (failure to maintain brakes in proper repair and working order) as alleged in specification (d) of appellant’s complaint. What we have said concerning appellant’s second charge of error by us, applies in all respects to this, her final ground, and disposes thereof.

Petition denied.

NOTE. — Reported in 145 N. E. 2d 730.

Rehearing denied in 146 N. E. 2d 428.