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The Pittsburgh, Cincinnati, Chicago and St. Louis Ry. Co. v. Burton.

mortgage debt was collectible without relief from valuation or appraisement laws.

Counsel for appellee contend that the conclusions of law should be restated so as to hold that the Blockberger mortgage is not a second lien on the land in question. The action of the court, however, was correct in this particular. The Pipers, in their deed of purchase, assumed the payment of this debt as well as that due the Etna company. The Pipers were owners of the land by virtue of that deed. The deed from the sheriff, at most, improved their title only by cutting off all liens not assumed by them in their deed from the Kupfers. We find no available error in the record. The judgment is affirmed.

Filed Nov. 13, 1894.

No. 16,364.



- Averment that
Damages. - Action by Administratrix.
Plaintiff was Free from Fault Not Necessary.-It is not necessary to
allege in a complaint by a wife, as administratrix, to recover dam-
ages for negligently causing the death of her husband, that she was
free from fault.

SAME.-Averment as to Inability to See and Hear.-Effect of.—In a com-
plaint to recover for negligently causing the death of the plaintiff's
decedent at a railroad crossing, an allegation that the deceased was
"unable to see or hear any engine or train of cars in motion on ac-
count of" certain described obstructions, is equivalent to an allega-
tion that he did not see or hear the engine or train.
SAME.-Contributory Negligence.-Pleading.-When Specific Controls
General Allegation.--A specific allegation will not control a general
allegation of freedom from contributory negligence unless the
specific allegation appears to include all of the occurrence and

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The Pittsburgh, Cincinnati, Chicago and St. Louis Ry. Co. v. Burton.

stands in conflict with that otherwise embraced in the general allegation. RAILROAD.-Street Crossing.-Obstructions.-Finding as to How Far Trains Could be Seen.-Negligence.-Where one driving along a street which crosses two parallel railroad tracks, thirty-five feet apart, exercises due care in approaching and passing the first track, which is a side track, with cars standing thereon so as to obstruct the view of the main track, and then looks and discovers a train, which has not given the required signals, rapidly approaching upon the main track, and makes every possible effort to avoid a collision, it is immaterial how far he could have seen the train when he had crossed the side track, and a refusal to require the jury to make a finding upon that point is not error. SAME.-Killing at Street Crossing.-Neglect to Give Signals.-Limit of Damages. Statute Repealed.-The act of March 29, 1879 (Acts 1879, p. 173; R. S. 1881, section 4020, et seq.), in so far as it fixes the damages recoverable for injuries caused by the failure of a railroad company to give certain signals at a highway crossing at five thousand dollars, was repealed by the general act of April 7, 1881 (R. S. 1881, section 284; R. S. 1894, section 285), fixing the limit of damages in all actions for death by the wrongful act of another at ten thousand dollars.

SAME.-Care Required of Traveler at Crossing.-Care Stated.—Omission of Signals. Contributory Negligence.-One who is about to cross over a railroad track at a street crossing is only required to exercise prudence and caution in proportion to the dangers incident to the crossing, with its obstructions and peculiar hazards; and so one who, being in possession of all of his faculties, drives toward a crossing with care, stops and looks and listens at a parallel side track thirty-five feet distant from the main track, but can hear no approaching train and can see none by reason of obstructing cars upon the side track, passes over the side track, again looks and listens and then cautiously approaches the main track and when near it discovers a rapidly approaching train, which so frightens his ordinarily gentle horses that, notwithstanding his strongest efforts, they run forward upon the track and the driver is killed, is not guilty of negligence, and damages may be recovered where it appears that the defendant's servants in charge of the train negligently omitted to give the signals required by law.

DAMAGES.— What Damages Not Excessive. A recovery of nine thousand four hundred dollars for the wrongful killing of an industrious and frugal farmer, in good health, with an expectancy of thirty-eight years, who leaves surviving a wife and infant child, can not, on appeal, be said to be excessive.

SPECIAL VERDICT.-Instruction as to.-Where the trial court submits

The Pittsburgh, Cincinnati, Chicago and St. Louis Ry. Co. v. Burton.

two forms of special verdict with instruction to take either or modify either, or write one for themselves, but that they would "hardly be driven to this labor unless neither of the forms submitted states the facts proved in the form you prefer to state them," the instruction is not open to the objection that it intimates to the jury that they should adopt one or the other of the forms submitted. SAME.-Preponderance of Evidence.-Effect of Omission to Find Fact.An instruction that "if, on any material fact, the evidence is equal, so that there is no preponderance, you are not at liberty to find and state that fact in your special verdict," is not erroneous, as the failure to state the existence of a fact is equivalent to a finding that the fact is not proved by a preponderance of the evidence. SAME.-Instruction as to What Should be Returned.-An instruction to a jury, where a special verdict is demanded, that all facts asserted by the plaintiff, if proved, should be returned and the facts asserted and not proved should be omitted, is correct.

SAME.-Instruction as to Forms Submitted.-An instruction to a jury who are directed to return a special verdict, that "You are not required to find any fact to be proved because you find the same suggested in a verdict, or in the verdict of the party you desire to favor,” and that "If you do not consider that one of the forms submitted to you speaks the truth, as you understand it, you can not adopt it as your verdict,” is not, properly construed, erroneous.

SAME. Conclusions Disregarded.-A mere conclusion stated in a special verdict as a finding will be disregarded.

From the Cass Circuit Court.

N. O. Ross and G. E. Ross, for appellant.

J. C. Nelson, Q. A. Myers, S. T. McConnell and A. G. Jenkins, for appellee.

HACKNEY, J.-The appellee, as administratrix of the estate of her deceased husband, Thomas S. Burton, sued to recover damages for negligently causing the death of said Thomas at the crossing of the appellant's railway and Center street, in the incorporated town of Royal Center.

The complaint alleges that the deceased, while attempting to cross said railway in his buggy, approached the crossing from the east on said street and drove his team in a slow walk and looked and listened, but "was

The Pittsburgh, Cincinnati, Chicago and St. Louis Ry. Co. v. Burton.

unable to see or hear any engine or train of cars in motion on account of the obstruction of his view by cars and trains of cars then and there standing upon the side tracks, which the said defendant had then and there negligently permitted to be and remain there; and on account of adjacent buildings and fences that intervened."

In addition to the allegation of negligence in obstructing the view by cars, it was alleged that the appellant negligently failed to give any signal or warning of the approach of its engine and train, by sounding the whistle or ringing the bell in the manner and within the distances from said crossing, as required by law as to such signals, and that its train was negligently run at the rate of fifty miles an hour upon said crossing and against the buggy and team driven by the deceased, and in the collision thereby the said Thomas was killed. The allegation of noncontributory negligence by the deceased is repeated as to each charge of negligence against the company and as to all of the occurrences generally.

Two objections are urged against the complaint; first, that it is not alleged that plaintiff, the widow, was free from fault, and, second, that the allegation that the deceased was "unable to see or hear any engine or train of cars in motion on account of" said obstructions, was not equivalent to the fact that he could not or did not see or hear the train before going upon the track.

As sustaining the first of these objections are cited Louisville, etc., R. W. Co. v. Boland, 53 Ind. 398, and Sullivan v. Toledo, etc., R. W. Co., 58 Ind. 26.

The first was a case involving a claim for the destruction, by fire, of certain buildings, and the ordinary rule was applied in holding that the owner was required to allege that he was free from negligence contributing to

the loss.

The Pittsburgh, Cincinnati, Chicago and St. Louis Ry. Co. v. Burton.

The second was an action to recover for the negligent killing of a minor child, and it was held necessary to allege that the father, who sought to recover, was guilty of no negligence contributing to the death of the child. One's property and his minor children are subjects of his care and control, and, as in agencies, he is responsible for their conduct and entitled to their services. Not so with the wife; her husband is not, legally speaking, subject to her control and the right of action accruing to her or to his estate is that which he might maintain if living. If living and prosecuting the action for his own personal injuries, his contributory negligence alone, and not that of his wife, would defeat the action; that relationship does not exist between the husband and wife which imputes the negligence of one to the other; especially is this true where the one sues in the right of the other, as in this case.

The case of the Indiana Mfg. Co. v. Millican, Admr., 87 Ind. 87, holds that in an action by an administrator it is not necessary to negative contributory negligence by the administrator. The fact that the widow administers is no reason for a distinction in the rule, and if the distinction could be maintained and the rule carried to its logical conclusion every complaint by an administrator would be required to negative the contributory negligence of each person interested in the recovery sought. The doctrine of imputed negligence in such cases was expressly repudiated in Miller, Admr., v. Louisville, etc., R. W. Co., 128 Ind. 97; Louisville, etc., R. W. Co., v. Creek, Admr., 130 Ind. 140.

As to the second objection to the complaint, the appel lant admits that if the allegation so objected to had been omitted, the general allegations of freedom from contributory negligence would have made the complaint sufficient.

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