Rouse

This is an action to recover damages for personal injuries caused by negligence of the defendant. The defendant appeals from the judgment and from an order denying its motion for a new trial.

A collision occurred between a passenger car of the defendant and an oil train of the defendant, the plaintiff being at the time a passenger in the car. The defendant admitted these facts and that the collision was due to its negligence. The only issue in the case was raised by a denial that the plaintiff sustained any injuries from the accident. The judgment is based upon the verdict of a jury awarding damages in the sum of five thousand dollars to the plaintiff. The only points presented on the appeal are those hereinafter noted. The defendant introduced no testimony and the case was submitted upon the uncontradicted evidence presented by the plaintiff.

In giving instruction A the court told the jury that the fact that plaintiff was injured in the collision was admitted by the defendant. In view of the denial in the answer made as above stated, the court erred in making the above mentioned statement to the jury; but as the evidence produced to the jury established beyond controversy that…