late our fundamental law by holding two offices, the sure penalty will be the loss of that over which the state has jurisdiction. He may, if he will, surrender the federal office and retain that created by the state, but he cannot retain both in defiance of the constitution. If he elects to hold the federal office, he must surrender the state office. The courts will coerce obedience to the constitution, and will not permit men to hold office in violation of its provisions.

It is doubtless the general rule that where a man accepts an office held under the state, he vacates another held under the same sovereignty. Darley v. State, supra; Lucas v. Shepherd, 16 Ind. 368; Creighton v. Piper, supra; Howard v. Shoemaker, supra; Cotton v. Phillips, 56 N. H. 219; Milward v. Thatcher, 2 Term R. 81; People v. Hanifan, 96 Ill. 420; Stubbs v. Lea, 64 Me. 195; Shell v. Com., 77 Va. 328. But the reason of the rule fails when applied to offices held under different sovereignties; and where the reason of the rule fails, so, also, does the rule. There is reason for the rule where the offices emanate from the same government, but none where the offices are created by different governments. The national law neither creates nor governs a state office; neither inducts the officer into office, nor expels him from it; neither fixes his qualifications, nor prescribes his disabilities. On the other hand, the state law exerts no dominion over the federal officer as an officer; neither prescribes his qualifications, nor declares his disabilities; and it is therefore logically inconceivable that the acceptance of an office existing under a state law vacates an office existing under a national law. Where, as here, a man elected to a state office persists in retaining a federal office, actually remains in it, enjoying its emoluments, and discharging its duties, he does not, in legal contemplation, and certainly not in fact, vacate it by entering into an office existing under the law of the state, and for this plain reason: the laws of the state do not operate upon federal offices. Our laws do not extend to offices created by the general government, and no act that an officer acting under our laws can do can vacate an office upon which our laws do not operate. Nothing done under our laws can operate where our laws are without effect.

We must hold that a man can be expelled from a state office who persists in holding one given him by the federal government, or we must concede that the courts of Indiana cannot control a citizen who assumes to hold office in direct violation of the constitution. This concession

will not be made.

Judgment reversed.

(105 Ind. 62)

CONNER v. CITIZENS' ST. Ry. Co.1

Filed January 26, 1886.

1. TRIAL SPECIAL VERDICT-FACTS MUST BE FOUND, NOT CONCLUSIONS OF LAW. It is the province of the jury to find the facts only in a special verdict, and not to draw inferences or conclusions of law.

8. NEGLIGENCE-WHEN QUESTION OF LAW For Court.

Where the facts are found by the jury in a special verdict, it is a question of law for the court to determine whether they make a case of negligence or not.

Rehearing denied.

8. CARRIER OF PASSENGERS-STREET-CAR COMPANY-NEGLIGENCE.

Where, in an action against a street-car company to recover damages for an injury caused by negligence, it appears that the plaintiff signaled the driver that he wanted to take passage, and that the driver, having "slowed up" in a manner to invite him to get on, caused the car to be started suddenly and "jerked" forward as the plaintiff was attempting to board it, thus causing the injury, the plaintiff is entitled to recover.

Appeal from Marion superior court.

Ritter & Ritter, for appellant.

H. C. Allen and Ferd. Winter, for appellee.

MITCHELL, J. This was a suit brought by John B. Conner against the street railway company to recover damages for personal injuries sustained by him on account of alleged negligence on the part of the railway company. The appellant had judgment upon a special verdict at special term. This was reversed on appeal to the general term, and the record is now here, with an assignment that the general term erred in reversing the judgment of the special term.

The questions for decision arise on the special verdict returned by the jury. Summarized, the material facts returned were that the railway company, on the seventh day of May, 1883, owned and operated a street railway, for the carriage of passengers, over certain streets in the city of Indianapolis; that on the day mentioned three of the defendant's cars, by reason of a mule attached to one of them having balked, had become "bunched" or collected together at a point on its line, so that they had lost their proper time or interval. An officer of the company who was upon the first car directed that it, and the car succeeding it, should be driven rapidly, without stopping to receive passengers, so as to regain their proper distance from each other, and that the third or rear car should receive such passengers as should present themselves. Pursuant to direction the three cars started down College avenue. Two of them were driven in a fast trot. The first car passed the point where the plaintiff was standing, without slacking its speed. When the second, as we infer from the finding, approached the footway at the crossing where the plaintiff was standing, that being the usual place for receiving passengers, the plaintiff, as the finding recites, "gave notice to the agent, an employe in charge of said car, that he desired to take passage therein as passenger;" that the car was one of the regular vehicles for the carriage of passengers; and that there was room in the car so that he could have been carried without inconvenience to himself, the defendant, or to other passengers therein. It is then found that the plaintiff was not instructed by an officer or agent of the defendant to get upon said car; that as the car came up to where plaintiff stood, its speed was slackened from a rapid trot to a walk, and when the rear step came about over the walk it was moving slowly; that it was the defendant's custom to slacken the speed of its cars to let men passengers on or off while in motion, as the plaintiff well knew; that the plaintiff attempted to enter the car by the rear door, and stepped one foot on the step, and

partially took hold of the iron railing with one hand, when the driver struck the mules with his whip, suddenly increasing the speed of the car, which caused plaintiff to be violently thrown on the ground, from which he sustained severe injuries and bruises. The conclusion of the finding of what purports to be the facts is as follows:

(12.) That the conduct of plaintiff on the occasion of the injury was ordinarily prudent and cautious, under the circumstances, and that he did not wholly contribute to said injury by any fault or negligence on his part, but that said injury was caused mostly by the agent of the defendant, driver of said car.

In determining the legal value and quality of the facts found, the paragraph above set out is not to be regarded as a finding of facts. It contains nothing more than inferences or conclusions drawn by the jury upon the precedent facts, and upon them it was not the province of the jury, in their special verdict, either to express opinions or draw conclusions. In framing and returning a special verdict, the whole duty of the jury is discharged when they have found and set forth, in an orderly and intelligible manner, all the principal facts which were proven within the issues submitted to them. Railroad v. Spencer, 98 Ind. 186; Railway v. Bush, 101 Ind. 582. A special verdict is that by which the jury find the facts only, leaving judgment thereon to the court. Section 545, Rev. St. 1881. When, upon an issue involving negligence, the principal or ultimate facts are determined by the jury, it then becomes the function of the court to decide as a question of law, upon the facts found, whether or not the party to whom negligence is imputed was negligent. A civil case cannot be conceived of, in which it is the province of the jury, by special verdict, to determine the facts, and also to draw inferences in the nature of legal conclusions upon the facts found. When the jury find and return facts in a special verdict, it must then be considered that the facts in that case are no longer in dispute. They are ascertained and settled by the special verdict. Unless it can be maintained that the inference or conclusion which may be drawn from all the ascertained and undisputed facts is also a fact, it must follow that it is not the province of the jury to draw inferences or state conclusions. It is settled, by decisions so numerous that we need not cite the cases, that where the facts are undisputed, it is the province of the court to settle the question of negligence as a question of law. This must be so in the nature of things. If it is otherwise, there is a class of cases in which, upon the undisputed facts, the court is incapable of reaching a conclusion, or of determining whether such facts constitute negligence or not. As, in cases where the question is whether, upon an ascertained state of facts, the conclusion of fraud, conversion of goods, payment, or probable cause for the institution of a suit may be drawn, so, where the question is whether negligence has intervened, where the facts are ascertained by the instrumentality selected for that purpose, the court must determine whether in law negligence can be predicated upon the facts as ascertained. Louisville, N. A. & C. R. R. v. Balch, ante, 288, (present term.) Concede that in some sense negligence is, as it is sometimes said to be, a mixed question of law and fact, it cannot be so after the facts

are ascertained. In cases involving negligence, as in all other civil cases, a point must be reached at some time when the facts and the law are to be considered as separate and distinct; when the litigants have the right to invoke the judgment of the court, and require it to determine whether, upon the facts as they are agreed to be, the law declares that negligence intervened. Such a point we think is arrived at when the jury had agreed upon and returned to the court in a special verdict the principal contested facts in issue. Without entering further upon ground which has often before been debated over, we are not willing to admit that a case can arise in which the court must stand mute in the presence of undisputed facts, without authority to declare the law.

Eliminating the unauthorized conclusions drawn by the jury, we proceed to the consideration of the facts properly returned in the special verdict. Upon the facts so returned, we think it clearly appears that the defendant was guilty of negligence, and that the plaintiff was without contributory fault. While the plaintiff stood upon the crossing at the usual place where passengers were taken up, one car passed rapidly, without slackening its speed. Seeing the next approach at a rapid trot, he gave notice to the person in charge that he desired to be taken up. The speed of the car was slackened, so that when the rear end came opposite the crossing it was moving slowly. It cannot be assumed that the plaintiff had information that the approaching car, one of the regular vehicles on the line, was not to take passengers. Being at the usual place where passengers were taken up, and having given notice to the person in charge of the car that he desired to be taken up, it was the plain duty of the driver or person in charge either to afford him reasonable opportunity to enter the car, or to notify the plaintiff, either by continuing the rapid pace or in some other way, that he would not be taken. Instead of giving any sign that he would not be taken, the speed of the car was slackened, so that it was moving slowly when he attempted to get on. Having received a signal, and slowed up in a manner to invite the plaintiff to get on, it was a clear act of negligence in the driver or person in charge not to observe the plaintiff, if he did not observe him, and, while he was getting on the car in a manner in which the defendant generally received such passengers, to cause the car to be "jerked" forward, as the jury found.

Having given notice of his desire to be taken on board the car, and its speed having been slackened, so that it was apparently safe under ordinary circumstances, it was not negligence in the plaintiff to attempt to get on while the car was so in motion. He had a right to rely upon the watchfulness and care which it was the duty of the driver to bestow towards persons about to take passage, under the circumstances, and was not bound to anticipate that the car which he was getting upon might be "jerked" forward by an act of the driver so as to put him in danger. Chicago City Ry. Co. v. Munford, 97 Ill. 560. The rules applicable to persons getting on and off cars operated by steam are not to be applied in all their rigor to street railways operated by horse-power. A person having the free use of his faculties and limbs, and having proper notice

of his desire to be taken up, the car having slackened up in the usual manner, it is not negligence for him to attempt to get on while it is moving slowly. Murphy v. Union Ry., 118 Mass. 228; Wyatt v. Street Ry., 55 Mo. 485; Thomp. Carr. 443, 444.

The judgment of the general term is reversed, with costs.

(105 Ind. 125)

SNURR v. STATE.

Filed January 26, 1886.

1. CRIMINAL LAW-ADJOURNED TERM-HOLDING TWO COURTS IN SAME CIRCUIT AT SAME TIME.

Where a judge, having statutory authority to appoint an adjourned term of court, makes an order in term-time for holding an adjourned term, causes notice of such adjourned term to be given, appears at the time appointed, and opens court, the proceedings at such adjourned term are not void, although held at a time when another court of the same circuit might have been in session under the statute, and was in session, presided over by a special judge.

2. SAME-WAIVER BY FAILURE TO OBJECT.

If a defendant voluntarily appears, and goes to trial without objection at an adjourned term, irregularly held, he will be deemed to have waived all objection to the irregularity.

8. HOMICIDE-SELF-DEFENSE-DEFENSE OF BROTHER.

The general rule is that a brother may lawfully defend his brother when in peril, and, if need be, take life in such defense; but when both the brothers are in fault, and unite in bringing on the fatal rencounter, this general rule does not apply, and there must be a retreat, or an attempt to retreat, before either of the brothers can be excused or justified in slaying the person whom they had assailed.

Appeal from Whitley circuit court.

Sinclair & Hanna, for appellant.

C. M. Dawson and F. T. Hord, for appellee.

ELLIOTT, J. On the twenty-second day of September, 1883, the Whitley circuit court, then being regularly in session, entered an order directing that an adjourned term be held, commencing on the twenty-ninth day of October, 1883, and notice was given of the adjourned term according to law. The time fixed in the order was a time when, under the provisions of the statute, the court in Kosciusko county might be in session; and Kosciusko county, in conjunction with Whitley county, constituted the Thirty-third judicial circuit. The court in the former county was actually in session on the twenty-third day of October, 1883, and continued in session during the time the trial of the appellant was in progress; the judge of the Thirty-third circuit having appointed a special judge to hold that court. The adjourned term of the Whitley circuit court, at which the appellant was tried, was held by the duly-elected judge of that circuit. The appellant entered into trial without any objection, and made none until after verdict, and then, for the first time, presented the question of the authority of the judge of the Thirty-third judicial circuit to hold the adjourned term. The statute fixes the time