Henrietta Dannenberg, Appellee, v. George Rahn, Appellant.

(Not to be reported in full.)

Abstract of the Decision.

1. Trespass, § 52 * —when instruction erroneous as not in conformity with issue. In an action of trespass, where the declaration charged that the defendant with force and arms, etc., assaulted plaintiff by driving his automobile against a buggy in which plaintiff was riding, causing her to be thrown, and defendant complained of the giving of an instruction based upon the theory of negligence, held that as such instruction was not based upon the issue of trespass with force and arms raised by the declaration, but upon the issue of negligence, the giving of it was error.

2. Negligence, § 208*—when instruction directing verdict is erroneous. An instruction based upon negligence, which directs a verdict is erroneous if it omits the element of due care on the part of the plaintiff.

3. Trespass, § 52*—when instruction erroneous as assuming facts. Iñ a trespass case where the testimony upon the question whether or not there was a collision was contradictory, held that an instruction assuming that there was a collision was erroneous.

Appeal from the Circuit Court of Randolph county; the Hon. J. P. Gillham, Judge, presiding. Heard in this court at the March term, 1917.

Reversed and remanded.

Opinion filed June 18, 1917.

Statement of the Case.

Action by Henrietta Dannenberg, plaintiff, against George Bahn, defendant, to recover for injuries due to. a collision of defendant’s automobile with the buggy in which plaintiff was riding. From a judgment for plaintiff for $700, defendant appeals.

William M. Schuwerk and William H. Schuwerk, for appellant.

A. C. Bollinger and H. Clay Horner, for appellee.