ON PETITION FOR REHEARING. In his petition for rehearing, appellant properly contends that this court failed to discuss alleged error of the trial court in giving to the jury instructions Nos. 20 and 23, on its own motion.
Instruction No. 20 informed the jury as to intervening agency and as to when such intervening agency will be treated as the sole proximate cause of the injury. The instruction also applied the rule of intervening agency to the instant case and stated: ". . . and if you further find from all the evidence in this cause that such mother of the plaintiff did not use due and ordinary care in caring for such fireworks and in returning them to the plaintiff such as an ordinary prudent person would do under the same or like circumstances, then you will find that said mother was negligent."
While it is true, as contended by appellant, that an intervening agent need not do nor commit a negligent act in order for it to break the causal relation between the original 12, 13. act of negligence complained of and the injury, we cannot see how appellant was harmed by this instruction. In fact it is more favorable to appellant than to appellee to instruct the jury that the fact that the mother of plaintiff did not use care in returning the fireworks to her son would of itself establish negligence on her part. We find no error in the giving of this instruction. *Page 384
Instruction No. 23 informed the jury as to ordinary care and applied the principle to the appellant as a seller of merchandise. It is contended that such instruction assumed 14. that all fireworks are dangerous and injurious. We are of the opinion that this instruction is not subject to criticism on the grounds stated and that the jury was not misled thereby.
Appellant calls attention to the statement in our opinion as follows: "We can see no merit in this contention in as much as appellee dismissed said first paragraph of complaint." This statement is erroneous and the original opinion is modified by insertion of a period after the word "contention," and by striking out "in as much as appellee dismissed said first paragraph of complaint."
In passing upon the question of error predicated on the refusal of the court to instruct the jury to find for the defendant on the first paragraph of complaint, we keep in mind the 15. well-established rule that if there is any evidence from which the jury could reach the conclusion evidenced by its verdict, this court will not disturb it. The circumstances surrounding the sale of the fireworks, the custody thereof, and as to how the accident happened, were all detailed to the jury, and we are of the opinion that there was some evidence from which the jury could arrive at the verdict returned by it.
Motion for rehearing denied.
NOTE. — Reported in 38 N.E.2d 255. *Page 385