was

after rounding the curve, and after said curve is rounded by train moving westward the track is straight, and somewhat down grade for a distance of a half mile; that said decedent was engaged in feeding the furnace when the engine rounded the curve, and that he could not be on the lookout for switches while he was thus engaged; and that under the circumstances in which Wilson placed at the time after he had finished feeding said furnace, and after his vision had recovered from the glare of the furnace, so that he could discover whether said north switch light was burning or not, it was too late for him to give warning to Bickle in time to stop the train and avoid the collision. The jury further found that before Wilson had unished feeding the furnace Bickle had discovered that the switch light was out, and determined to run on without checking the speed of the train; that, owing to the speed at which the train was running, and its being down grade, the train would have required a distance of a quarter of a mile or more to be stopped; that by the rules of the appellant, Bickle was charged with the safety of the train, and responsible with the conductor for keeping the train on time, and that it was the engineer's duty to have the train under such command as to be able to stop should the switch prove wrong, and that it was for the purpose of carrying out said rules and keeping his train on time that Bickle did not check the speed of the train until it became too late to stop it and avoid the collision, and that by the rules of the company the fireman was placed under the immediate superintendence of the engineer, and was required to obey his reasonable direction in all matters concerning his duty. The general verdict affirms that Wilson was without fault. The special findings are not in conflict with this vlew. In fact it is expressly found that his duties under the circumstances were such at the time that he could not have discovered the absence of the switch light in time to have given warning to the engineer to stop the train and avoid the collision. If he had discovered that the light was not burning, all he could have done was to give notice of this fact to the engineer, and it clearly appears that the engineer had the notice that the light was not burning as early at least as Wilson could have communicated such knowledge to him. It is affirmatively found that the failure of appellee to give such notice did not contribute to the injury, because, without reference to the notice, the engineer had determined to proceed without checking the speed of the train. In the light of the general verdict and the answers of the jury to the interrogatories, it requires no argument, in the opinion of the writer, to show that Wilson was not guilty of any negligence on his part that contributed as a proximate cause to the injury.

There are other interrogatories which in some respects are apparently in conflict with

those to which we have referred, but such conflict in the special findings with each other cannot be resorted to for the purpose of overthrowing the general verdict. Where the answers to the interrogatories contradict or negative each other, the general verdict stands. It is a familiar rule that the special findings control only when they are in irreconcilable conflict with the general verdict. Judgment affirmed.

ROSS, J. (dissenting). From the facts in this case it is evident that there were two causes, either of which might have brought about the injury for which damages are sought in this action, namely, the neglect of the brakeman, Demsky, of the freight train, to close the switch after his train had backed upon the side track, and the negligence of the engineer and fireman of the passenger train to stop their train in obedience to the rules of the company. It requires no argument to show that in the absence of either of these acts of negligence the accident would not have occurred; for, if Demsky had closed the switch, as it was his duty to do, the passenger train would have proceeded along the main track, and there would have been no collision. By this neglect of duty on his part the passenger train was thrown upon the side track, and collided with the freight train, resulting in the death of the decedent. On the other hand, if the decedent and his engineer had stopped their train when they saw that the switch target was without a light, and had not attempted to pass the switch until assured that it was closed, as it was their duty to do under the rule of the company, the accident could not and would not have happened. Without the intervention of either of these causes the accident could not have occurred, and the decedent would not have been killed.

Conceding that the jury, by their verdict, found that the appellant was guilty of negligence in retaining in its service the brakeman Demsky after it acquired knowledge of his incompetency, it still remains to be determined whether or not his negligence in leaving the switch open was the proximate cause of the injury, or whether it was the result of some other cause, either that of some third person or of the decedent himself. In an action where it is shown that two causes combined produced the injury complained of, both of which causes are proximate in their character, one being the result of the defendant's negligence and the other an occurrence for which neither party is to blame, the defendant will be liable, provided the injury would not have been sus tained except for his negligence. Grimes v. Railway Co., 3 Ind. App. 573, 30 N. E. 200, and cases cited. It is a common, if not almost a universal, expression of courts that every person is bound to anticipate the results which naturally flow from his acts, and for that reason is answerable for an injury

resulting therefrom. But in the case of Railway Co. v. Kellogg, 94 U. S. 469, Justice Strong, speaking for the court, says: "We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to this misfeasance or nonfeasance. They are not when there is sufficient and independent cause operating between the wrong and the injury. In such a case, the resort of the sufferer must be to the originator of the intermediate cause; but when there is no intermediate efficient cause the original wrong must be considered as reaching to the effect and proximate to it." If a party does an act which might naturally produce an injury to another as its consequence, and before any such injury results a third person does some act or omits to perform some duty, and this act or omission of the third person is the immediate cause of an injury which would not have resulted except for such act or omission, the act or omission of such third party is the immediate or proximate cause, and the act of the first party but an indirect cause; the causal connection between the act of the first party and the injury is broken by the interposition of the act or omission of the third party. Washington v. Railroad Co., 17 W. Va. 190; Pike v. Railway Co., 39 Fed. 255; Insurance Co. v. Tweed, 7 Wall. 44; Railway Co. v. Kellogg, supra; Lewis v. Railway Co., 54 Mich. 55, 19 N. W. 744; Curtin v. Somerset, 140 Pa. St. 70, 21 Atl. 244; Mire v. Railroad Co., (La.) 7 South. 473; Whart. Neg. (2d Ed.) §§ 134, 438.

In this case the only question to be determined is, what was the proximate cause of the collision resulting in decedent's death? The proximate cause is not necessarily the last preceding cause which conduced to the happening of the event, but it is the cause closest allied to the event without which it could not have happened. It is impossible, as is clearly demonstrated by the opinions of our most learned jurists, to state a fixed rule that can be applied in determining the proximate cause in all cases. Much often depends upon the circumstances of the particular case, and what is or what is not a proximate cause will often have to be determined upon considerations of sound judgment and enlightened common sense, without the aid of any certain or infallible rule. In Marble v. Worcester, 4 Gray, 395, Shaw, C. J., says: "The whole doctrine of causation, considered in itself, metaphysically, is of profound difficulty, even if it may not be said of mystery." And again: "Perhaps no event can occur which may be considered as insulated and independent. Every event is itself the effect of some cause or combination of causes, and in its turn becomes the cause of many ensuing conse quences more or less immediate or remote. The law, however, looks to a practical rule, and on account of the difficulty in unrav

eling a combination of causes and of tracing each result * to its true, real. and efficient cause, the law has adopted the rule * of regarding the proximate. and not the remote, cause of the occurrence which is the subject of inquiry." It appears to the writer that to solve the question of proximate cause in this case is a matter of little difficulty, as I hope to make clear. To determine the cause efficient, we have but to consider what each of the parties were bound to anticipate would be the result of their acts and omissions, and, when that is understood, we have solved the main difficulty which presents itself. The appellant was bound to know that trains proceeding along the road could not pass the switch when open. It also knew that under its rules governing the operation of its trains no train was allowed to attempt to proceed with a switch in that condition, and it had a right to assume that those in charge of the passenger train would do their duty, and would not attempt to proceed when the switch was open. The decedent knew that if he attempted to proceed with the switch open, a collision must inevitably occur with whatever might be upon the side track. The appellant was not bound to anticipate the happening of the accident by the omission of its duty to close the switch, unless it was also bound to anticipate that the decedent and his engineer would fail to do their duty. The law imposes no such duty on appellant, but only requires that appellant answer for the results which naturally flow from its negligence. It could not be expected that the decedent and his engineer, knowing that Demsky had left the switch open, would not do their duty, and stop their train. On the contrary, it was to be presumed that they would not knowingly cast themselves in the way of a danger which must inevitably result in injury. "Where one party has been negligent, and a second party, knowing of such antecedent negligence, fails to use ordinary care to prevent an injury which the antecedent negligence rendered possible, the negligence of the second party is the sole cause of the injury." Bostwick v. Railway Co. (N. D.) 51 N. W. 781. The above language was quoted with approval by our supreme court in the recent case of Railroad Co. v. Perigeuy (Ind. Sup.) 37 N. E. 976, which was an action to recover for an injury to an employé, alleged to have been the result of the company's negligence in failing to furnish a headlight on an engine, by reason of which it collided with another train. The facts in that case disclosed that while the railroad company was negligent in failing to furnish a good and sufficient headlight, which, had it been furnished, the accident might have been averted, yet the facts disclosed that those in charge of the train, in violation of an order of the company, ran their train out upon the main track from a side track where they

were to await the arrival and passage of the other train. From these facts the court held that it was not the negligence of the company in failing to furnish a headlight that was the proximate cause of the collision, but the negligence of the servants in running the train out on the main track in violation of its order. Again, in the case of McGahan v. Gas Co. (Ind. Sup.) 37 N. E. 601, which was an action brought by the appellant to recover for an injury caused by the explosion of natural gas which had been negligently permitted to escape in the cellar of one Kilburn, and after repeated requests, and a promise by the company to shut off the gas so that no more would escape, McGahan, who had been employed by the owner of the property to find the leak and repair the pipe in the cellar, went into the cellar with a lighted candle, and the accumulated gas exploded, causing the injury. The court, after reviewing the facts, held that the failure of the company to turn the gas off, and thus prevent its escape and accumulation in the cellar, was not the proximate cause of the injury, but that the negligence of McGahan in going into the cellar with a lighted candle was the proximate cause. If these cases are to stand and be recognized as authority, I think them decisive of the question presented in this case as to the proximate cause of the decedent's injury. In fact it was conceded by counsel for appellee, when arguing this case orally before this court, that the question presented in this case was identical with that in the case of Railroad Co. v. Perigeuy, supra, and that, if the original opinion in that case, which had been rendered prior to such oral argument, was to stand, it was decisive of this case, and the judgment would have to be reversed.

There is some conflict in the answer to the interrogatories as to just when the decedent first saw that the light on the switch target was not burning, but that he knew it when his engine was more than a quarter of a mile distant, I think is undisputed; and also that, after he became cognizant of the danger, he made no effort to stop his train; neither did he attempt to slacken its speed. Under the rules of the company, made for the operation of its trains, and with which the decedent was familiar, the jury find it was the duty of both the decedent and his engineer to be vigilant, and to act with the utmost promptness in stopping the train whenever anything which might be taken as a signal of danger was seen. They were to take no risks. If signals of safety were not shown at any point where they ought to be. It was the duty of the fireman to inform the engineer, and his duty to stop, or go carefully, until assured that it was safe to proceed. That they discovered the danger, the engineer, when more than half a mile away, and the fireman when between a quarter and a half mile distant,-and that

they made no effort either to stop or even slacken the speed of the train, which was then running at the rate of 40 miles per hour, is also found by the jury; and they find further that the train was equipped with air brakes and other appliances for stopping, which were so constructed and arranged as to be operated by either the engineer or fireman, which would have enabled those on the engine to have stopped the train within a quarter of a mile. Without a rule of the company imposing it as a duty, those in charge of and operating a locomotive hauling a passenger train should exercise the greatest vigilance for the safety not only of themselves, but of those helplessly in their charge, who are so situated as to be without the means of knowing of approaching danger, or the power to avert it. The instinct of self-preservation would lead one to exercise at least ordinary care, and to fail in the performance of this duty is not merely evidence of negligence, but is of such a degree as to evince a total disregard of consequences. When an employé disobeys a rule established by his employer for the carrying on of his business, and the disobedience proximately contributed to his injury, he cannot recover, although the employer's negligence also contributed thereto (Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. 380; Matchett v. Railway Co., 132 Ind. 334, 31 N. E. 792); for it is well settled in this state that one seeking to recover for an injury by reason of the negligence of another must show affirmatively not only that the defendant's negligence caused the injury, but that he himself in no way contributed thereto; that is, that he omitted no duty which, if observed, would have prevented the injury (Railroad Co. v. Brannagan, 75 Ind. 490; Stoner v. Pennsylvania Co., 98 Ind. 384; Lyons v. Railroad Co., 101 Ind 419; Railroad Co. v. Butler, 103 Ind. 31, 2 N. E. 138; Railway Co. v. Greene, 106 Ind. 279, 6 N. E. 603; City of Ft. Wayne v. Coombs, 107 Ind. 75, 7 N. E. 743, and cases cited); for where two causes combined produce an injury, one of which causes is the result of the negligence of the injured party himself, he cannot recover damages from the party whose negligence produced the other cause, for the reason that the injured party's own negligence was a factor in bringing about the result. The debatable question that now confronts us is, did the failure of the decedent to stop or slacken the speed of his train in any way contribute to his injury? A sufficient answer to this is that, had he stopped his train as he could and should have done, he would not have been injured. This failure on his part to do his duty was the direct cause of the collision which resulted in his death. Whether the failure to stop the train was the disobe dience of the decedent or his engineer, Bickle, such disobedience was nevertheless the direct and proximate cause of the colli

recover.

3. On the question as to the terms of a contract for the services of a stallion, evidence of contracts made by the owner with other persons is not admissible.

4. The exclusion of evidence will not be reviewed unless the court is referred to the part of the record in which the error occurred.

Appeal from circuit court, Henry county; E. H. Bundy, Judge.

Action in the justice court by George A. Koons against Samuel L. Evans. From a judgment on appeal to the circuit court for plaintiff, defendant appeals. Affirmed.

John M. Morris, for appellant. Brown & Brown, for appellee.

REINHARD, J. This action was commenced before a justice of the peace for the recovery of the sum of $25, alleged to be due the appellee from the appellant for the service of a stallion. The appellant filed an answer of general denial, and a second paragraph setting up a breach of warranty and failure of consideration. He also filed a counterclaim for breach of warranty, in which he claimed damages in the sum of $50. These pleadings bring the amount involved within the jurisdiction of this court on appeal. There was a trial by jury, and a verdict and judgment for the appellee in the sum of $10.

The court sustained a demurrer to the second paragraph of the answer, and this ruling is assigned as error. The cause having originated before a justice of the peace, the facts averred in the second paragraph of the answer, if they constituted a defense to the action, were admissible without special answer. Rev. St. 1894, § 1528 (Rev. St. 1881, § 1460). This being so, the appellant could not have been harmed by the ruling. Tewksbury v. Howard (Ind. Sup.) 37 N. E. 355.

The second alleged error is the overruling of the motion for a new trial. One of the causes assigned in this motion is that the verdict is contrary to law and evidence. It is insisted in argument by the appellant's counsel that there is no evidence to sustain a verdict for $10; that under the evidence the

appellee was entitled to recover $25, if any. thing at all; and that, as there is no basis for a verdict of $10, the latter is contrary to law, and not supported by the evidence. In our opinion, this argument is not tenable. If there was evidence upon which a verdict for $25 could have been upheld, it is not within the appellant's power to claim that the verdict was not for a sufficiently large amount. The appellant offered to prove by John Crimm and other witnesses that the appellee, in the spring of 1891, represented to them that his horse, "Farren Wilkes," the horse for which services were claimed in the present action, was standard bred, eligible to registry in Wallace's American Trotting Register, and that, if witness and others would breed their mares to his said horse, if he did not get him registered, he would not charge them for the service of said horse. This proposed testimony was, upon objection of appellee, excluded, and the appellant insists that such ruling was error. The appellant contends in argument that, as there was a dispute between the parties as to what the contract between them really was, the appellant claiming that he was to pay nothing for the service of the stallion if appellee did not have him registered, the testimony offered and excluded would have been competent as tending to prove a custom on the part of ap pellee to make this agreement with his customers, and to corroborate the appellee in his version of the contract. We are of opinion that the ruling was clearly right. We do not see how the fact that appellee made or offered to make other contracts about the time the present one was entered into, and that such other contracts were of the tenor and effect of the one which the appellant claims was made in the present instance, would tend to prove that the contract in the case at bar was such as the appellant asserts. Had the offer been to prove by evidence of written or printed advertisements, or even by oral testimony, the general or customary terms upon which appellee stood his horse, the case might be different; but such was not the offer. Here the proposition was to prove the terms of other contracts in no wise connected with the contract in suit, and we are unable to understand by what rule of evidence the facts offered to be proved could have been relevant to any question in issue. The appellee certainly had the right to make as many and as various contracts as he could obtain, and the fact that he entered into one kind of an agreement with one or more persons would furnish no presumption that he entered into a similar agreement with the appellant or any other person.

Appellant's counsel, in their brief, assert that they offered to prove, in support of the appellant's counterclaim, "the difference in value of a foal from defendant's mare sired by standard-bred stallion, but the court ruled out such evidence." We are not favored by the appellant's counsel with any

reference to the pages and lines in the record where such alleged ruling may be found, and cannot be expected to search the record for

errors.

It is further claimed that the court permit ted the appellee to prove that his stallion was in fact standard bred if his breeding was as stated in a printed card handed the witness. This, it is insisted, was erroneous, as the representations or statements in the card formed no part of the contract. The appellee insists, however, that the evidence shows that the card, or one or more like it, was furnished the appellee at the time the contract was entered into, and formed a part of such contract. As counsel have not seen proper to point out the pages and lines in the record where the alleged erroneous ruling was made, we are unable to determine, without searching the voluminous record of the evidence, whether the printed card was connected with the contract or not. It has been so often decided that, in order to secure a reversal, the appellant is required to point out the error relied upon, and to establish it affirmatively, that it cannot be necessary to cite any authorities in support of the rule.

The appellant requested the court to give the jury an instruction prepared by his counsel which the record shows the court refused to give. The record further shows, however, that among the instructions given by the court of its own motion there was at least one which fully covered the subject of the one refused, and contained a correct statement of the law applicable to such question. There was, therefore, no available error in the refusal of the instruction asked for. Judgment affirmed.

WADE et al. v. HUBER.

(Appellate Court of Indiana. Oct. 10, 1894.) DEMURRER TO ANSWER-FORM-HARMLESS ERROR.

1. A demurrer to an answer on the ground that it "does not state facts sufficient to constitute a good answer" is defective; it should be that the answer "does not state facts sufficient to constitute a cause of defense."

2. Sustaining a defective demurrer to an answer is ground for reversal only where the answer was sufficient.

Appeal from circuit court, Posey county; R. D. Richardson, Judge.

Action by George Huber against Leroy M. Wade and others. A demurrer to the separate answer of Wade was sustained, and he appeals. Reversed.

Wm. P. Edson and John M. Edson, for appellant. E. M. Spencer, for appellee.

ROSS, J. The only question argued by counsel for appellant is whether or not a paper filed by the appellee, and denominated a "demurrer," is sufficient in form and substance to constitute a demurrer. It was filed as a demurrer to the separate answer

of the appellant, Leroy M. Wade, and was sustained by the court. This demurrer, omitting the caption, reads as follows: "The plaintiff demurs to the second paragraph of defendant Leroy M. Wade's answer, and for grounds of demurrer says that said answer does not state facts sufficient to constitute a good answer." The appellant insists that it is insufficient both in form and substance, and raises no question as to the sufficiency of the answer; that the statute defines the causes for demurrer, and this demurrer does not contain any of the statutory causes. Section 349, Rev. St. 1894 (section 346, Rev. St. 1881), provides that, "where the facts stated in any paragraph of the answer are not sufficient to constitute a cause of defense, the plaintiff may demur to it under the rules prescribed for demurring to a complaint." A demurrer to an answer for want of facts should be that the answer does not state facts sufficient to constitute a cause of defense. Silvers v. Railroad Co., 43 Ind. 435, 441. In Lane v. State, 7 Ind. 427, the demurrer was: "The plaintiff demurs to the first, second, and third paragraphs of defendants' answer, for the following grounds of objection: "That they are insufficient in law to constitute a legal defense to the action;" and the court held that it was insufficient, in that it contained none of the causes defined by the statute as cause for demurrer. In Hutton v. Railway Co., 7 Ind. 522, a demurrer defective in form was sustained to the complaint, and, on appeal, the court, reversing the ruling of the lower court, says: "The demurrer is not conformed to the statute,-is not, in form or substance, any of the six statutory causes. For that alone, the demurrer should have been overruled." In Dugdale v. Culbertson, 7 Ind. 664, a defective demurrer was sustained to an insufficient answer, and the supreme court reversed the judgment of the court below, saying: "The statute makes it imperative to overrule every demurrer which does not conform to the causes specified in the practice act." In Tenbrook v. Brown, 17 Ind. 410, a demurrer in the following language, viz.: "Comes now said plaintiff, and demurs to the second paragraph of the defendant's answer, and says that the same is not sufficient in law to enable the defendant to sustain his said defense, or to bar the plaintiff's complaint,"-was held insufficient. In Gordon v. Swift, 39 Ind. 212, there was a demurrer to the answer, the cause of demurrer to the first paragraph being, "that the said paragraph is not a sufficient defense in law to plaintiff's complaint;" to the third, "that the said third paragraph, as a defense to plaintiff's cause of action, is not sufficient in law;" and, to the fourth, "that the said fourth paragraph, as a defense to plaintiff's cause of action, is not sufficient in law." The court, in passing upon the sufficiency of the demurrers to test the sufficiency of the answers, says: "Indeed, we think none of