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

We are aware of the rule that where the facts pleaded show contributory negligence, the general negative allegation will not be sufficient, but the facts here specially pleaded, while, if not entirely sufficient of themselves to show every precaution required of one crossing a railway, they do not preclude the existence of further facts, and do not purport to set forth in detail all that he did to discover the approach of a train. In other words, we do not understand that a specific allegation will control the general allegation where the specific allegation does not appear to include all of the occurrence and stand in conflict with that otherwise embraced in the general allega tion. Warbritton v. Demorett, 129 Ind. 346.

But, aside from this, we can not agree with counsel that an allegation that the decedent "was unable to see or hear," is less than that he could not or did not see or hear. If he was unable to, he could not; if he was unable to, he did not.

We conclude that the complaint was sufficient against the objections urged.

The jury trying the cause returned a special verdict, and thereupon the appellant moved the court "to require the jury to retire to their jury room and make a finding in their verdict of how far the decedent could have seen a train approaching when he was across the easterly side track and thirty-five feet distant from the main track.”

The appellant now complains that the court erred in overruling this motion.

It is not the object of the special verdict that it shall return the weight of the evidence upon every question about which witnesses testify. The facts in issue under the pleadings are required, and not the abstract questions of evidence or evidentiary details. Whitworth v. Ballard, 56 Ind. 279.

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

The jury did find that "when he had passed the west side of the defendant's car that stood in the said Center street as aforesaid, he looked north and saw the defendant's train approaching upon said main track from the north at a high rate of speed, to wit, at forty-five (45) to fifty (50) miles an hour, without sounding bell or whistle, when he instantly pulled vigorously upon his lines and endeavored to stop his horses that were, by that time, ten feet from defendant's main track, but that his team had, by this time, discovered the said approaching train, and become at once greatly frightened and unmanageable; that he exercised his utmost efforts to stop his team to keep them off defendant's track, but was unsuccessful; that finding he was unable to stop his team, he pulled vigorously upon his left line and struck his off horse and urged his team to turn to the left to escape a collision, but without success, and was struck by said moving engine and train and injured and killed.'

If he used proper care up to the time he passed the car on the side track; if, when he had passed the standing car, he saw the train, and if, after seeing it, he did all that was possible to do to avoid collision, and we think this is the effect of the finding quoted, then the presence of a finding that the train was one hundred or one thousand feet from him when he first saw it would not be of controlling force against the conclusions of due care on the part of the deceased.

In the court's instruction numbered one, two forms of special verdict were submitted to the jury, with directions to take either or modify either, or write one for themselves to meet the facts as they might find them, and stated that they would "hardly be driven to this labor unless neither of the forms of verdict submitted * states the facts proved in the form you prefer to state them."

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

This statement, it is insisted, was an intimation to the jury that they should adopt one form or the other.

We are unable to believe the language employed capable of the construction counsel give it. The instruction, when all of its parts are considered, was a plain direction that the jury could adopt either form or modify either form, or reject both and prepare a form to suit their finding, but that the labor of preparing a form would not be necessary if either form stated the facts as found. There is no complaint that this direction was not proper.

The second of the court's charges contained the following: "And 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.'

Appellant insists that this was an error, and that where the evidence fails to preponderate in favor of an essential fact, the verdict should find expressly the nonexistence of that fact. To this insistence is cited Gulick v. Connely, 42 Ind. 134.

We do not understand the rule to be as counsel state it, nor do we understand the case cited to have so held. The duty of the court or jury stating the facts specially is not to state the failure of one who assumes the burden of an issue, but the failure to state the existence of the fact is equivalent to finding the nonexistence of the fact. A fact not found is a finding that the fact is not proven by a preponderance of the evidence. Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, and cases there cited.

The court instructed the jury that the maximum recovery allowed to the appellee in the event the finding should be for her was ten thousand dollars. The appellant claims that the limit should have been stated at five thousand dollars.

By the act of March 29, 1879, Acts 1879, p. 173, R.

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

S. 1881, sections 4020, 4021 and 4023, certain signals were required to be given by railway companies before running their trains over highway crossings, and a right of action was given for injuries sustained by reason of the failure to give such signals, and the amount of the recovery therefor was limited to five thousand dollars.

By the act of April 8, 1881, Acts 1881, p. 590, R. S. 1881, section 4020, the first section of the act of 1879 was amended so as to require the engine whistle to be sounded distinctly three times not less than eighty nor more than one hundred rods from any highway crossing, and to ring the engine bell continuously from the time of sounding such whistle until the engine should fully pass such crossing. As to the right of action so given. by the act of 1879 and the limit in amount of damages so prescribed, the amending act made no change.

By the act of April 7th, 1881, Acts 1881, p. 241, section 8; R. S. 1881, section 284; R. S. 1894, section 285, it was provided that when the death of one is caused by the wrongful act or omission of another an action might be maintained therefor, and the limit in damages was provided at ten thousand dollars, such sum to inure to the exclusive benefit of the widow and children, or next of kin. The latter act does not expressly repeal the act of 1879, and it remains to be determined whether there is a repeal by implication as to the amount of re

covery.

In Sutherland on Statutory Construction, section 145, it is said that "a new statute which affirmatively grants a larger jurisdiction or power, or right, repeals any prior statute by which a power, jurisdiction or right less ample or absolute had been granted."

This illustration is there cited from Regina v. Llaugian, 4 B. & S. 249: "An English statute authorized the removal of poor persons likely to become chargeable. The

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

power was given to two justices, one to be of the quorum. A later statute recited that act and repealed the provision for removal on the probability of their becoming chargeable, and enacted that a removal might be made of such persons after they had become chargeable to the parish, by two justices of the peace, without mention of the quorum. It was held that the requirement that one of the justices be of the quorum, contained in the previ ous act, was repealed by implication."

An early case in this State, in circumstances and principle much like the question under review here, holds that "as a general rule it is not open to controversy, that where a new statute covers the whole subject-matter of an old one, adds offenses, and prescribes different penalties for those enumerated in the old law, then the former statute is repealed by implication; as the provisions of both can not stand together." President, etc., v. Bradshaw, 6 Ind. 146.

To the same effect are the Madison, etc., R. R. Co. v. Bacon, 6 Ind. 205; Jeffersonville R. R. Co. v. Millet, 8 Ind. 255; Board, etc., v. Potts, 10 Ind. 286; Indianapolis, etc., R. R. Co. v. Davis, 10 Ind. 398; Evansville, etc., R. R. Co. v. Lowdermilk, Admr., 15 Ind. 120; Hayes v. State, 55 Ind. 99; Dowdell v. State, 58 Ind. 333; Wagoner v. State, 90 Ind. 504. See also Norris v. Crocker, 13 How. (U. S.) 429; People, etc., v. Mayor of New York, 32 Barb. 102 (121).

If the provisions of the act of 1879, extending the right and limiting the recovery, had been omitted therefrom, we apprehend that the act of April 7th, 1881, would have supplied that right and limited the recovery. It is evident, therefore, that the act of 1881 includes these elements of the act of 1879, and grants a larger right, not only in the increase of the amount of possible recovery, but in defining the persons to whom the recovery