Lake Erie & Western Railway Co. v. Parker

82 N.E. 1135, 40 Ind. App. 730, 1907 Ind. App. LEXIS 135

Opinion

Hadley, J.

This is a companion case with Lake Erie, etc., R. Co. v. McFall (1905), 165 Ind. 574, Lake Erie, etc., R. Co. v. Ford (1906), 167 Ind. 205, and Lake Erie, etc., R. Co. v. Hobbs (1907), ante, 511, all growing out of the same conflagration.

The first and second paragraphs of the complaint in this case contain substantially the same averments as the first and second paragraphs of the cases cited, and upon the authority of those cases the demurrers thereto were properly overruled. Objection is also made to the fourth and sixth instructions given by the court at request of appellee. These instructions-are identical with the fifth and sixth instructions set out in the case of Lake Erie, etc., R. Co. v. Ford, supra, and which the Supreme Court held to be reversible error. Upon the authority of that case the giving of the sixth instruction was error.

Other questions are presented but they will not necessarily arise on another trial, and therefore are not considered.

Cause reversed with instructions to grant a new trial.

Comstock, C. J., Roby, Rabb and Myers, JJ., concur. Watson, P. J., absent.