7. TRIAL 318-GENERAL VERDICT-FIND- [14. TRIAL ING. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 753, 754, 756; Dec. Dig. 318.] PROVINCE OF JURY. 195-INSTRUCTION-INVADING General verdict for plaintiff is a finding in Where the court instructed that by the exhis favor of every fact within the issues tend-pression, "preponderance of evidence,' as used ing to support the conclusion. in the instructions, was not meant the greater number of witnesses, and that the preponderance of evidence does not depend on the number of witnesses, and does not mean the greater number of witnesses, but does depend on the weight of the evidence, and means the greater weight of the evidence, the giving of such charge was not erroneous as invading the province of the jury, though its language was open to criticism. 8. TRIAL 359(1)-CONTRADICTORY__INTERROGATORIES-EFFECT OF GENERAL VERDICT. The fact that interrogatories are contradictory or inconsistent with each other tends to their own destruction, and not to that of the general verdict. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 857-860, 875, 878; Dec. Dig. 359(1).]| 9. TRIAL ~359(1)—ANSWERS TO INTERROGARECONCILIATION WITH GENERAL TORIES VERDICT. When the answers to all proper interrogatories, when read as an entirety, can be reconciled with the general verdict by any supposable evidence possible under the issues, they will not be permitted to overthrow such verdict. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 455; Dec. Dig. 195.] Appeal from Superior Court, Tippecanoe County; Henry H. Vinton, Judge. Action by John F. Cunningham against the Lafayette Telephone Company. From judgment for plaintiff, defendant appeals. Judgment affirmed. [Ed. Note.-For other cases, see Trial, Cent. George P. Haywood and Charles A. BurDig. 88 857-860, 875, 878; Dec. Dig. 359(1).] nett, both of Lafayette, for appellant. Ed10. TELEGRAPHS AND TELEPHONES 20(5)— gar D. Randolph, of Lafayette, for appellee. INJURIES FROM GUY WIRE-NEGLIGENCE IN CONSTRUCTION-SUFFICIENCY OF EVIDENCE. In an action against a telephone company for injuries received in falling over its guy wire, evidence held sufficient to warrant finding that defendant was negligent in using the particular construction of guying its pole rather than some construction which would have dispensed with the guy wire or would have made it more conspicuous or elevated it to where it could not trip travelers on the street. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. 20(5).] 11. TELEGRAPHS AND TELEPHONES 15(5)INJURIES FROM GUY WIRE-CONTRIBUTORY NEGLIGENCE. The fact that a police officer, who was injured by falling over a telephone company's guy wire when crossing a street, had previous knowledge of the obstruction did not establish his negligence per se, especially where he had just been called to from the other side of the street by his superior officer. HOTTEL, J. This is an appeal from a judgment in appellee's favor in an action brought by him in the Tippecanoe superior court to recover damages for injuries resulting from his tripping and falling over a guy wire alleged to have been negligently erected and maintained by appellant in Romig street, in the city of Lafayette. The complaint was in two paragraphs, each of which was demurred to on the ground that the facts stated therein were not sufficient to constitute a cause of action. Each demurrer was overruled, and appellant then filed an answer in general denial. The issues thus joined were tried by a jury, which returned a verdict in favor of appellee in the sum of $2,500, together with answers to interrogatories. A motion for judgment on said answers and a motion for a new trial were each overruled. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. The several rulings above indicated are each 15(5).] assigned as error in this court, and relied on for reversal. The allegations common to each paragraph of complaint, and pertinent to the questions presented by appellant's demurrer thereto are, substantially, as follows: The appellant, prior to January 23, 1911, negligently and unlawfully constructed a guy wire attached to a pole at an alley leading north off of Romig street, between Fourth and Fifth streets, and strung said guy wire east and fastened the same to an iron stake near the [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. curbing on the north side of Romig street, 20(7).] and at the root of a large sycamore tree, situated and standing between the sidewalk and the gutter on the north side of Romig street, and east of said pole about 75 or 80 feet. There are two other large trees between said alley and the sycamore tree at the root of which said guy wire is fastened. Said guy wire slopes from where it is fastened to said pole to where it is fastened to said iron public (appellee included), and hence shows stake in the ground, and is about a quarter [2] Each paragraph of complaint avers of an inch in diameter, and was carelessly, that appellant had erected its poles and wires negligently, and unlawfully constructed and in said Romig street; that appellee was a built in said highway by appellant long prior police officer in the city of Lafayette, and, on to the 23d day of January, 1911, and has the night in question, was walking on said been carelessly, negligently, and unlawfully Romig street in the performance of his dumaintained by it in said highway, as above ties as such officer. These averments show described, ever since. The construction of the duty of appellant to use reasonable care said guy wire as aforesaid is an obstruction to so maintain its guy wire that it would of Romig street, and a public nuisance. not endanger the use of said street by the Such wire obstructs the free and proper use of said street and highway by the public and the citizens of the city of Lafayette in this, to wit: That said wire is invisible at night, and is calculated to, and does, deceive and trip people and persons using said highway and street in crossing from one side of the street to the other. Appellee, on the occasion in question, was a member of the police force of the city of Lafayette, and while walking westward on the sidewalk on the north side of Romig street, between Fourth and Fifth streets, in the performance of his duty as such police officer, he was called to by another officer on the south side of Romig street, and, in response to said call, started across said street, and, not seeing, and not being able to see, said guy wire, was caught and tripped by it and injured, etc., all without fault on his part. The second paragraph of complaint contains the additional averments that, at a regular meeting of the board of works of the city of Lafayette, Ind., held on the 27th day of January, 1909, a motion was passed, declaring said wire an obstruction to said highway and street, "and that the company will be held liable for all damages caused by the same." [1] Appellant contends that neither of said paragraphs shows that said guy wire was unlawfully placed or maintained by appellant, or that appellant had no right to maintain said pole and wire at the place described, but that it appears from the averments indicated that the wire was anchored outside the traveled part of the highway; that each paragraph shows that appellee was injured in attempting to cross Romig street, at a place where there was no intersection of a street or alley, and at a place not provided for crossing, and that therefore no liability of appellant to appellee is shown. The primary and general use of a highway is for travel; and, although a telephone company may have the right to occupy a highway with its poles, yet if it secures them in the highway with guy wires, its duty is to use reasonable care to so erect and maintain such wires as not to endanger the public travel, or the safety of individuals in the reasonable and ordinary use of the highway. Wilson v. Great Southern Telep. & Teleg. Co., 41 La. Ann. 1041, 6 South. 781; Poumeroule v. Postal Teleg. Cable Co., 167 Mo. App. 533, 152 S. W. 114; 2 Shear. & Redf. Neglig. (6th Ed.) § 359; 1 Thompson, Neglig. § 1239; Curtis, Electricity, 504 p. 755. [3] Appellant, however, contends that the complaint shows that appellee was injured while attempting to cross said street at a place where there was no intersection of a street or alley, and at a place not provided for crossing. The fact that appellee, when injured, was outside the usually traveled part of the highway, while pertinent to the question whether appellee was guilty of negligence contributing to his injury, does not discharge appellant of its duty to use the reasonable care before indicated. Wilson v. Great Southern Telep., etc., Co., supra; Dickey v. Maine Tel. Co., 46 Me. 488; Crosswell on Electricity, 8 79; McIlhenney v. City of Philadelphia, 214 Pa. 44, 45, 63 Atl. 368; Raymond v. City of Lowell, 6 Cush. (60 Mass.) 524, 526, 53 Am. Dec. 57; Stringer v. Frost, 116 Ind. 477, 479, 19 N. E. 331, 2 L R. A. 614, 9 Am. St. Rep. 875; Simons v. Gaynor, 89 Ind. 165, [4] Nor can this court, under the facts averred in either paragraph of the complaint, say, as a matter of law, that appellee was guilty of contributory negligence in crossing the street where he did. Southern Bell, etc., Co. v. Howell, 124 Ga. 1050, 53 S. E. 577, 4 Ann. Cas. 707; Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. 415, 2 Am. St. Rep. 440; Simons v. Gaynor, supra; Elliott, Roads & Streets, 622; Collins v. Dodge, 37 Minn. 503, 35 N. W. 368; Raymond v. City of Lowell, supra. Appellant's contention that the court erred in overruling its motion for judgment on the jury's answers to interrogatories rests upon the assumption that such answers show: (1) That appellant was not guilty of any negligence causing appellee's injury; and (2) that appellee was guilty of negligence con- location was a proper one; and hence that tributing to his injuries. appellant is not shown to have been guilty of any actionable negligence. The answers pertinent to the first contention are to the following effect: The defendant, at the time of the accident, had a franchise in the city of Lafayette, under which it was authorized to construct and maintain along the lines of the streets and alleys of the city of Lafayette its poles, wires, etc., necessary for supplying telephone service to the citizens of said city. One of appellant's poles was located on the north side of Romig street. Said pole was braced by a guy wire; Romig street was improved and divided into a gutter, roadway, and sidewalks. There was a cement sidewalk on the north side of said street. There was a space, or grassplat, 3 feet, 10 inches wide, between said sidewalk and the curb on the north side of Romig street. Said guy wire was anchored just inside said curb in said grassplat, and 3 feet, 10 inches from the edge of said sidewalk. Said wire did not cross any part of said sidewalk, or the roadway of said Romig street, or any intersection of said street with any other street, or any roadway, cement walk, or crosswalk on said street. Said wire did not interfere with the passage of any animal, vehicle, or person on any cement walk, roadway, or crosswalk. There was no crosswalk at the place where appellee started to cross the street, when he met with the accident. The law applicable to the facts thus found by the jury, as expressed by the text-books and recognized by the decided cases is as follows: "A telephone or telegraph company using a highway is under a duty to exercise care to prevent injury to persons using the highway. A license from the municipal corporation to use the way does not relieve the company from that duty, but, on the contrary, the acceptance of the license implies a duty on the part of the electric company to exercise care and diligence to, prevent injury to persons using the highway." It is, however, insisted by appellant, and correctly so, we think, that: "The general proposition that the public is entitled to the free use of any portion of a public street must be accepted with the qualifications that a municipal corporation may devote portions of the sidewalk to other purposes useful and convenient to the public.' Teague v. City of Bloomington, 40 Ind. App. 68, 73, 74, 81 N. E. 103, 105; Village of Barnesville v. Ward, 85 Ohio St. 1, 96 N. E. 937, Ann. Cas. 1912D, 1234, 40 L. R. A. (N. S.) 94'; Dougher ty v. Horseheads, 159 N. Y. 157, 53 N. E. 799; Dotey v. District of Columbia, 25 App. D. C. 235. It is further contended by appellant, in effect, that under the authorities just cited, a municipal corporation has a right to designate and use a part of its street for a grassplat and shade trees, and that the facts found by the jury, indicated supra, show that the municipal officers of the city of Lafayette had so designated that part of the street where appellee was injured; that they had licensed appellant to locate its poles and lines in and along such grassplats; that such [5] While, as above indicated, the authorities recognize that the proper municipal officers of a city may devote a part of the sidewalks therein to the uses and purposes indicated, such portions of the sidewalk are, in the absence of an ordinance showing the contrary, held to be a part of the street, which the pedestrian may use for travel, and any authority or license to use such part of the street for the other purposes indicated must be exercised with reference to the possible uses thereof by such pedestrians; and such licensee must anticipate such possible use by the pedestrian, and his license will not absolve him from the duty of using ordinary care not to expose such pedestrian to unnecessary danger in his use of such portion of the street. Village of Barnesville v. Ward, supra; Johnson v. City of Bay City, 164 Mich. 251, 129 N. W. 29, Ann. Cas. 1912B, 866; Townley v. City of Huntington, 68 W. Va. 574, 70 S. E. 368, 34 L. R. A. (N. S.) 118; Poumeroule v. Postal, etc., Co., 167 Mo. App. 533, 152 S. W. 114; Curtis, Electricity § 487, p. 717. The right of the public to go upon such a grassplat was upheld in the case of Johnson v. Bay City, supra, where the defendant, a municipal corporation, maintained a row of poles on a city street between the sidewalk and the roadway, on that part of the street designed to be used as a grassplat, for ornamental purposes. The poles were part of the defendant's electric lighting system, by means of which it furnished electricity for both public and private lighting. Plaintiff, a child of about five years of age, while on said grassplat, was injured by coming in contact with a wire which had fallen from one of said poles. It was alleged that the wire fell because of the negligent manner in which it was erected and maintained. It was held that the plaintiff was not a trespasser upon said grassplat, and that the defendant was liable for the negligence charged. [6] The fact, established by some of the answers, that appellee went upon said grassplat for the purpose of crossing the street at that point, where there was no crosswalk, does not relieve appellant of its responsibility. A pedestrian is not restricted to crosswalks or street intersections in crossing a street, but he may cross at any place, and he is not necessarily guilty of contributory negligence because he does so. McIlhenney v. City of Philadelphia, 214 Pa. 44, 45, 63 Atl. 368; Raymond v. City of Lowell, supra; Moebus v. Herrmann, supra; Simmons v. Gaynor, supra; Stringer v. Frost, supra; Collins v. Dodge, supra. [7-9] As affecting its second contention, supra, appellant insists, in effect, that the answers to interrogatories show that there were two street lights, each of 2,000 candle that pipes are sometimes put over such anchors; that it would have been practicable to have fastened such a guy wire to a stub pole at a point several feet above the ground; that the pole could have been trussed so that no guy wire would have been needed. The jury was warranted in finding from such evidence that appellant was negligent in using the particular construction here used, rather than some construction which would have dispensed with said wire, or which would have made it more conspicuous, or elevated it so as to place it where it could not trip travelers on the street. City of Ft. Worth power, one at the intersection of Romig and | top of a pole on said street to an anchor Fourth streets, and one at the intersection of buried in the ground about 75 feet from said Romig and Fifth streets; that the accident pole, and just inside the curb near the root was in the winter season, when there were of a tree; that said guy wire was about oneno leaves on the trees, and nothing to inter-half or five-eighths inches in diameter; that fere with the rays of these lights falling on said anchor was an iron rod about an inch in the place where appellee received his injury; diameter, the upper end of which protruded that appellee had served as policeman some from the ground about 4 or 5 inches, and was eight or nine years; that his duties required bent back upon itself so as to form a loop to him to pass the place of his injury frequent- which said wire was fastened; that the verly; and that he knew of the existence and tical distance of this loop from the ground location of the wire over which he fell and was about 4 or 5 inches; that the place where was injured. It is insisted that these an- the anchor was buried was dark at the time swers show that appellee knowingly attempt- of the accident; that said place is dark at ed to cross the street, passing over the grass-night; that said wire could not easily be seen plat in question, where he knew the wire at night; that the construction of said wire was located, and thereby was guilty of neg- was not a proper construction in a street; ligence contributing to his injury. In answer to this contention, it should be stated that the jury expressly found that the place where appellee was injured was not lighted at the time of the injury by said street lights; that appellee before coming in contact with said wire used reasonable care; that such guy wire was an unreasonable obstruction to said street; that the maintenance thereof on said street was unnecessary, and was calculated to deceive and trip people in the lawful use of the street. It is insisted, and properly so we think, that some of said interrogatories, the answers to which we have just indicated, called for conclu- v. Williams, 55 Tex. Civ. App. 289, 119 S. W. sions, and should be disregarded. The fact remains, however, that without such answers the general verdict is a finding in appellee's favor of every fact within the issues tending to support such conclusions. The fact that interrogatories are contradictory or inconsistent with each other tends to their own destruction and not to that of the general verdict, and when the answers to all proper negligence in attempting to cross the street interrogatories, when read as an entirety, at a place where he knew he would come in can be reconciled with the general verdict by contact with it. It is true appellee testified any supposable evidence possible under the that he knew of the existence of the wire, issues, they will not be permitted to over- and that when he started to cross Romig throw such verdict. Pittsburgh, etc., Co. v. street, he did not think about it. He says, Lightheiser, 168 Ind. 438, 78 N. E. 1033; in this connection, that Capt. Kluth, his suDickason Coal Co. v. Peach, 32 Ind. App. 33, perior officer, had called to him from the op69 N. E. 189. For the reasons indicated, the posite side of said street, and that he thought trial court did not err in overruling appel- only about getting to him; that he thought lant's motion for judgment on said answers. "that there was something up." The fact [10] Appellant contends that the verdict of that appellee had previous knowledge of the the jury is not sustained by sufficient evi- obstruction does not, per se, establish his condence and is contrary to law. There is evi-tributory negligence. Such knowledge and dence that appellee, a police officer, was walk- his momentarily forgetting it are facts for ing westward on Romig street, between the consideration of the jury in determining Fourth and Fifth streets, in the city of La- whether the injured party was exercising reafayette, at about 8 o'clock in the evening of sonable care. Henry County Turnpike Co. v. January 23, 1911, being then in the perform-Jackson, 86 Ind. 111, 44 Am. Rep. 274; Wilance of his duty as such police officer; that son v. Road Co., 93 Ind. 287; City of Evanshis superior officer called to him from the ville v. Thacker, 2 Ind. App. 370, 28 N. E. opposite side of said street; that appellee 559. This is true especially where the atten. heard the call, and recognized it as that of tion of such party has been diverted. City his superior officer, and in response thereto of East Chicago v. Gilbert, 59 Ind. App. 613, started across said street, and in doing so 108 N. E. 29, 109 N. E. 404. In the course fell over a guy wire maintained by appel- of his duties, a policeman often meets with lant; that said guy wire extends from the emergencies requiring quick action on his 137; Louisville Home Tel. Co. v. Gasper, 123 Ky. 128, 93 S. W. 1057, 9 L. R. A. (N. S.) 548; Poumeroule v. Postal Teleg. Cable Co., supra. [11, 12] It is insisted, however, by appellant that the evidence shows that appellee knew of the existence and location of said wire, and hence was guilty of contributory part, engrossing his entire attention, and we | 2. CONTRACTS 143-CONSTRUCTION. the construction of contracts than in the con- [13] Appellant complains of the action of the trial court in permitting certain witnesses, over appellant's objection, to testify that they, at different times, since the accident to appellee, had tripped over the wire in question. The court, after such testimony had been admitted, instructed the jury "not to consider it at all in making up" their “verdict in this case." Any error committed in admitting this testimony was cured by this instruction. [14] The court gave the following instruction: "By the expression, preponderance of the evidence,' as used in these instructions, is not meant the greater number of witnesses. The preponderance of evidence does not depend upon the number of witnesses, and does not mean the greater number of witnesses. It does depend upon the weight of the evidence, and it means the greater weight of the evidence." Appellant urges that the giving of this instruction was error, because it invaded the province of the jury. In the case of Hammond, etc., R. Co. v. Antonia, 41 Ind. App. 335, 83 N. E. 766, it was held that an instruction, that "the preponderance of the evidence does not necessarily lie with the party who may have introduced the greater number of the witnesses, but it depends upon the greater weight of the evidence, in view of all the testimony and the facts and circumstances before you" was not erroneous as being an invasion of the province of the jury. See, also, Indianapolis St. Ry. Co. v. Johnson, 163 Ind. 518, 525, 72 N. E. 571, 573, 574. While the wording of the instruction under consideration is open to criticism, we are of the opinion that under the authorities, supra, the giving of it did not constitute reversible BURNETT et al. v. MUTUAL LIFE INS. CO. OF NEW YORK et al. (No. 8995.)* (Appellate Court of Indiana, Division No. 2. Nov. 28, 1916.) 1. INSURANCE 146(1) — CONSTRUCTION OF POLICIES. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 723, 743; Dec. Dig. 143.1 3. INSURANCE 585(4) LIFE INSURANCE [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1463, 1466; Dec. Dig. 585(4).1 4. APPEAL AND ERROR 193(9)-QUESTIONS REVIEWABLE-SUFFICIENCY OF COMPLAINT STATUTE. Under Acts 1911, c. 157, providing that, when a demurrer to any complaint is filed on the ground that it does not state facts sufficient to constitute a cause of action, a memorandum shall be filed therewith stating wherein such pleading is insufficient, and the party so demurring shall be deemed to have waived his right thereafter to question the same for any defect not so specified, where defendants, by their memorandum accompanying their demurrer addressed to the complaint, raised no objection to its sufficiency on the ground that plaintiffs' right of action depended on an unpleaded statute of the state of New York, the question was not before the Appellate Court for review on appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. $$ 1232-1236; Dec. Dig. 193(9); Pleading, Cent. Dig. § 1365.] [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1472-1474; Dec. Dig. 589. For other definitions, see Words and Phrases, First and Second Series, Children.] 6. INSURANCE ARY. 586-RIGHT OF BENEFICI Where no power of disposition is reserved in the assured in the ordinary life policy, the beneficiary, upon issuance and acceptance of the policy, acquires a vested right, which cannot be impaired without his consent, but where the right is reserved to the assured to change the beneficiary at will, the original beneficiary acquires no vested interest in the policy, and has a mere expectancy until assured's death. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1470; Dec. Dig. 586.] Though policies of insurance contain provi- 7. INSURANCE 589-RIGHT OF BENEFICIsions found in instruments or writings testa- ARY TERMINATION BY DEATH. mentary in character, they are to be construed Where assured made his wife the beneficiin accordance with the principles of law apary of his life policies, not reserving the right plicable to contracts, and not wills. to change beneficiary, she had a vested interest [Ed. Note.-For other cases, see Insurance, in the policies after issuance and acceptance, Cent. Dig. §§ 292, 296, 297; Dec. Dig. but such interest conferred no right either on 146(1).] her children who survived her, or her grand For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |