Miller v. Deming Hotel Co.

FAULCONER, J.

— Appellant filed suit against appellee for damages for personal injuries sustained by her when she fell on appellee’s premises. Trial by jury resulted in a verdict for appellee, and judgment was entered accordingly.

Appellant timely filed her motion for new trial containing grounds 1, 2(a), 2(b), 2(c), 2(d), 2(e) and 2(f), which was overruled, which ruling appellant assigns as error on appeal.

Appellant discusses only specifications 2(c), 2(d) and 2(e) in the argument section of her brief. Therefore, all other grounds or specifications for new trial are deemed waived. Gernhart v. State (1954), 233 Ind. 470, 472, 120 N. E. 2d 265; Rule 2-17 (e) and (f), Rules of the Supreme Court, 1964 Revision.

Specification 2(c) contends error in the giving to the jury defendant-appellee’s Instruction No. 16 over the objection of plaintiff-appellant. Specification 2(d) contends error in giving defendant-appellee’s Instruction No. 3 over the objection of plaintiff-appellant. Specification 2(e) contends error in giving defendant-appellee’s Instruction No. 22 over the objection of plaintiff-appellant.

*341*340We will consider specifications 2 (c) and 2 (e) together inasmuch as they involve virtually the same issue. Appellant *341specifically objected to only one sentence in Instruction No. 16 contending that it would invade the province of the jury in that it instructed the jury, as a matter of law, that plaintiff-appellant was required to look for steps when her duty was only the use of ordinary reasonable care under all of the circumstances. Appellant’s objection to Instruction No. 22 is, in effect, the same as that made to Instruction No. 16.

Both of these instructions were tendered by appellee and given by the trial court over specific objections of appellant, and instructed the jury on the use by the appellant of her senses.

The trial court was not required to embody all applicable law into one instruction, McClure v. Miller (1951), 229 Ind. 422, 435, 98 N. E. 2d 498; Washington Hotel Realty Co. v. Bedford Stone, etc., Co. (1924), 195 Ind. 128, 149, 143 N. E. 156; Powell v. Ellis (1952), 122 Ind. App. 700, 708, 105 N. E. 2d 348 (Transfer denied) ; and our duty, on appeal, is to determine, from all the instructions given, if the jury was properly and fairly instructed. Riechmann v. Reasner (1943), 221 Ind. 628, 634, 51 N. E. 2d 10; Pittsburgh, etc., R. Co. v. Higgs (1906), 165 Ind. 694, 708, 76 N. E. 299; H. E. McGonigal, Inc. v. Etherington (1948), 118 Ind. App. 622, 636, 79 N. E. 2d 777 (Transfer denied).

A review of all the instructions given by the trial court, and specifically Instructions Nos. 5 and 15 tendered by appellant, convinces us that such instructions covered appellant’s objections and that the jury was properly, thoroughly and fairly instructed. Therefore, the giving of appellee’s tendered Instructions Nos. 16 and 22 was not reversible error.

Appellant next asserts error in the giving by the trial court of defendant-appellee’s tendered Instruction No. 3. Appellant’s specific objection thereto was that the last two paragraphs of said instruction “requires the plaintiff [appel*342lant] to prove her freedom from contributory negligence as a condition precedent to a recovery, and as such places upon plaintiff a burden greater than that placed upon her by the law.”

Appellant is confined on appeal to the specific objection made to an instruction in the trial court. Keeshin Motor Express Co. v. Sowers (1943), 221 Ind. 440, 446, 48 N. E. 2d 459; Sims Mtr. Transp. Lines, Inc. v. Davis, Admx. (1956), 126 Ind. App. 344, 352, 130 N. E. 2d 82 (Transfer denied). Rule 1-7, Rules of the Supreme Court, 1964 Revision.

Appellant ably sets forth in the argument section of her brief general rules of law, and supporting authorities, pertaining to error in the giving of an instruction placing an erroneous burden of proof on a party, and that such an instruction cannot be cured by other instructions. However, appellant cites no authority to substantiate her assertion that the instruction objected to does, in fact, place upon her an erroneous burden of proof. Nowhere in the argument section of appellant’s brief has she applied her assertions, or the authorities cited and quoted from, to the instruction in question. Any application is limited to her conclusion that the courts have condemned such an instruction as defendant-appellee’s tendered Instruction No. 3 after quoting the general principle of law.

■ We are of the opinion that appellant under this assignment has failed to exhibit clearly the points of fact and of law being presented “and how they are applicable . . .,” as required by Rule 2-17 (e), supra. (Emphasis supplied.) However, we are of the further opinion that had appellant argued the specific objection made by her to this instruction, such objection is without merit and the giving of said instruction by the trial court was not reversible error.

Appellee assigned cross-errors which we have considered, and we find therein no grounds for reversing this judgment.

*343Finding no reversible error, the judgment of the trial court is affirmed.

Judgment affirmed.

Prime, C.J. and Carson, J., concur.1

Wickens, J., not participating.

. While Judge Martin participated in the hearing of oral argument and a conference of the judges, his untimely death occurred before the adoption of this opinion.