HUNTER, J.
This is a consolidated appeal from a consolidated jury trial. Appellant, Baughman, had instituted suit against appellee, New York Central Railroad Company, for damages attributable to personal injuries resulting from a collision of a truck driven by Baughman with a New York
Appellants' assignment of error alleges that the trial court erred in overruling their motions for a new trial. The identical question that appellants attempt to raise by assigning this alleged error concerns the trial court's refusal to allow into evidence an Anderson ordinance pertaining to speed limit of trains. At the outset we must be concerned with appellants' motions for a new trial because appellee in his brief argues that these identical motions for new trial are inadequate in that such have failed to preserve a question for consideration of this court. The identical motions, insofar as they concern the only question argued by appellants in this appeal are quoted verbatim as follows:
Appellee is indeed correct that these authorities and many others so hold. Appellants, in their reply brief quite effectively attempt to negate the numerous decisions enunciating the above rule by the following reasoning:
We are quite impressed with this argument. However, because of the compelling weight of judicial authority, both from this court and recent pronouncements of the Indiana Supreme Court and the continued existence of the rule for a number of years, we are constrained to hold that appellants have failed to properly present a question to this court in that their motion for a new trial failed to set forth the objections made by the appellee to the excluded evidence.
The rule that the objections to the question must be included in the motion for a new trial evidently began with
This rule was again stated by the Indiana Supreme Court as dictum in Eva v. State (1932), 203 Ind. 340, 180 N.E. 183. However, the rule was a direct holding in the case of Kenwood Tire Co. v. Speckman (1931), 92 Ind.App. 419, 423, 424, 176 N.E. 29, where this court held: "... the ground of the motion to strike out (certain evidence admitted) not being stated in the motion for a new trial there is no reversible error shown in the ruling of the court in reference thereto." (Citing cases)
The above cited decisions and others in the early 1930's definitely established the rule by case law that the objections to evidence admitted or excluded by the trial judge must be contained in the motion for a new trial in order to present a question on review. The rule has persisted to today by the vehicle of numerous authorities. See Flanagan, Wiltrout and Hamilton, supra, and 1 I.L.E., Appeals, § 172, footnote 29.
We have reviewed most of the recent cases relative to this rule and find that at times the question sought to be presented to the court on appeal concerned the admission of certain evidence. Yet, the rule stated speaks of the necessity to set forth the objection in the motion for new trial when there is
The above cited decisions may be considered questionable authority insofar as being binding upon appellants in the instant case in that they have failed to set forth in their motion for new trial the objections made to evidence which was excluded by the trial judge. However, there are several cases which are directly in point which bind our decision herein. The following more recent authorities directly hold that the objections to the evidence must be included in the motion for new trial where evidence is excluded in order to preserve error for consideration on appeal. City of Indianapolis v. Pollard (1960), 241 Ind. 66, 69-70, 169 N.E.2d 405; Hunt v. State (1956), 235 Ind. 276, 281, 133 N.E.2d 48; Matthews v. Adoniram Grand Lodge etc. (1958), 129 Ind.App. 395, 399, 154 N.E.2d 806; Rephan v. City of Evansville (1951), 122 Ind.App. 271, 274, 102 N.E.2d 514; Loehr v. Meuser, supra. There are many other Supreme and Appellate Court cases with a similar holding. Their citation would only be cumulative.
In reference to the above reasons for the rule, we offer the following comments. We need not search the record for the objections made to the evidence excluded in the instant case in that appellants have set forth such objections in their brief. The trial judge need not have the objections to excluded evidence called to his attention because it makes no difference whether or not the particular objections made were valid. Any valid objection could be resorted to in order to uphold the trial court's ruling. Thus, when the motion for a new trial is considered by the trial judge, he only needs to decide whether the exclusion of the evidence was objectionable in any manner. Likewise, on appeal, if the objections to the excluded evidence were neither in the motion for new trial, nor set forth in the brief, the omission would seem to be relatively harmless in that we could utilize any objection to sustain the trial court's ruling on the excluded evidence. In other words, on the factual situation here presented, the logic for the rule is difficult to perceive.
Nevertheless, the fact that the rule is "firmly entrenched" in Indiana Supreme Court decisions compels us to negate the above arguments advanced in opposition to the rule because
Therefore, the judgment of the trial court must be affirmed.
Judgment affirmed.
Bierly, C.J., Mote and Smith, JJ., concur.
NOTE. — Reported in 210 N.E.2d 877.
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