Indianapolis Traction & Terminal Co. v. Grey , 38 Ind. App. 141 ( 1906 )

Comstock, P. J.

Action brought by appellee for personal injuries caused by a collision of two of appellant’s cars while appellee was alighting from “one of them. The cause was put at issue by general denial. A trial by jury resulted in a verdict on which judgment was rendered for $4,000. Appellant’s motion for a new trial was overruled. Appellant complains only of the giving of certain instructions.

1. The appellee contends that no question is presented as to the instructions because they are not in the record. Appellant attempted to put them in the record by bill of exceptions. The court refused to sign the bill, for the reason that the record did not disclose that the defendant excepted to the giving of them. This proposition is not controverted by appellant, but it is contended that the judge should have corrected the bill in accordance with §641 Burns 1901, §629 E. S. 1881, and stated the manner in which the exceptions were taken or attempted to be taken. The cause was tried solely on the evidence introduced by appellee. Appellant took no exception to the instructions, but filed a motion for a new trial, setting out as errors the giving of the instructions. After the overruling of this motion, appellant attempted, by a bill of exceptions incorporating the instructions, to show that exceptions were taken. The court refused to sign this bill for the reason that no exceptions were taken. It does not appear that appellant attempted to show that exceptions had been taken, or attempted to be taken. In the brief of appellee it is stated that no exceptions were taken. The judge’s denial of the correctness of the statement recited in the bill was a sufficient correction. No other effort appears to have been made to obtain the signature of the judge.

2. Upon the theory that it was a true bill, appellant is in no position to complain .of the action-of the trial court. Appellant claims that it is entitled to the instructions brought before the court on appeal, even though no exceptions were taken, and this for the reason that the verdict was, in this case, erroneously affected by the instructions.

3. Unless the instructions are incorrect, they cannot be considered as prejudicially affecting the jury, and even then cannot be assailed unless exceptions were taken at the proper time.

Judgment affirmed.