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[1] It will be noticed that this patent de the court in its instructions, without retiring, scribes certain whole sections, fractional sec- returned the following verdict on the issues tions, and other tracts, containing in all 11,- joined between the cross-complainant Walker 303.39 acres of land according to the official and appellee: plats of survey of the said lands returned to “We, the jury, find for the cross-complainant the General Land Office by the Surveyor the plaintiff, Isabella Carson, that he is the

Amos W. Walker on his cross-complaint, against General. These provisions in the patent af

owner of the following described real estate, to firmatively disclose an intention or purpose wit: An undivided interest amounting to five to patent the lands surveyed, and not the acres in the north half of the northwest quarter, areas meandered and returned, as shown up, ter, and lots three and four, and the west thirty

and the southeast quarter of the northwest quaron the plat, as "Impassable Morass,” and and thirty-one hundredths acres of lot two; containing more than 1,900 acres of land. all in section 17, township 36 north, range 8 Therefore the lands of the "Impassable Mo west, situated in Lake county, Ind. We furrass” were not conveyed by patent to the ther find that the cross-complainant Amos W.

Walker is entitled to a tax lien upon the interstate of Indiana, either directly or indirectly, est of the plaintiff, Isabella Carson, in the and remained the property of the United above-described real estate, amounting to $487.: States. Chapman & Dewey v. St. Francis, 23, and is entitled to have said lien foreclosed.” supra; Producers' Oil Co. v. Hanzen, supra, The jury then retired to deliberate upon and cases cited; Sizor v. City of Logansport, their verdict upon the remaining issues, and 151 Ind. 626, 629, 50 N. E. 377, 44 L. R. A. returned shortly into open court with the 814; Illyes r. White River Light Co., 175 Ind. following verdict: 118, 93 N. E. 670.

“We, the jury, find for the plaintiff, that her There is here no claim that the appellee title to the lands described in her complaint be obtained any title to that portion of lots 2 quieted in her." and 3 in section 17 south of the meander Afterwards, on the 3d day of February, line, except through the patent of her re- 1913, the same being the first judicial day mote grantor, the state of Indiana. There of the February term, 1913, of the court, apfore, the state having derived no title to the pellant club filed its motion for a venire de land from the government, appellee has no novo, for the reasons: (1) That there were title whatever of record.

two verdicts rendered in said cause; (2) [2] The Supreme Court of the United that said verdicts are inconsistent with each States having declared as to what passed to other; (3) that, reading the general verdict the state under the patent to the state (Chap- in the light of the verdict in favor of the man & Dewey v. St. Francis, 232 U. S. 186, cross-complainant Walker, it appears that, 34 Sup. Ct. 297, 58 L. Ed. 564), and that be- if the verdict in favor of the latter is right, ing a federal question, its decision must be the verdict against this defendant is wrong; followed by this court. Worth v. Wheatley, (4) that the jury's verdicts in this case are 183 Ind. 598, 606, 108 N. E. 958; Cleveland, of such character that the court cannot renetc., R. Co. v. Blind, 182 Ind. 398, 105 N. E. der judgment thereon, as required by stat483; Wabash R. Co. v. Priddy, 179 Ind. 483, ute; (5) that the verdict in favor of cross495, 101 N. E. 724; State ex rel. v. Terre complainant Walker is in contravention of Haute, etc., R. Co., 166 Ind. 580, 581, 77 N. the final judgment in favor of this defendE. 1077.

ant recovered in this cause in the Lake suThe cases of Tolleston Club of Chicago v. perior court; and (6) that the verdicts in State, 141 Ind. 197, 38 N. E. 214, 40 N. E. said cause are ambiguous. Appellant Walk690, and Tolleston Club of Chicago v. Clough, er also filed his motion for a venire de novo 146 Ind. 93, 43 N. E. 647, wherein they con- for similar reasons as those assigned by apflict with Chapman & Dewey v. St. Francis, pellant club. supra, and this opinion, are to that extent Appellee then moved to amend the two overruled.

verdicts, to which the appellants Walker and The court's instruction numbered 4, com- Tolleston Club each objected. By agreement plained of by appellant club, is erroneous of parties the above appellants filed their for the reason that it instructs the jury that motions for new trial without waiving their the patent of the state of Indiana to Aaron rights under their motions for a venire de N. Hart conveyed all the lands both north novo. The court afterward sustained appeland south of the meander line and extending lee's motions to amend the two verdicts, southwardly to the south line of section 17. amended them, and overruled appellants' moFor error in the giving of instruction num- tions for a venire de novo. Appellants conbered 4 the judgment must be reversed. tend that this was error.

The court gave some other instructions of [3] Where there are two verdicts returned which appellant Tolleston Club complains, by the jury and the court does not send the and which are erroneous for the same rea- jury back to their rooms, under proper insons as those assigned to instruction number- structions to return a single verdict, before ed 4.

their discharge, and where the verdict of the The record herein shows that on December jury is imperfect, uncertain, or incomplete, 20, 1912, and during the November term, a motion for a venire de novo must be sus1912, at the close of the instructions to the tained. Baughan v. Baughan, 114 Ind. 73, jury, the jury, pursuant to the direction of 15 N. E. 466, 17 N. E. 181; Maxwell 8.



Wright, 160 Ind. 515, 521, 67 N. E. 267; Na- could not affect his right to recover for injury tional Cash Reg. Co. v. Price, 41 Ind. App. resulting from his jumping off the bridge, where 274, 83 N. E. 776.

it appeared that he was a member of the pub- .

lic in the proper use of a public bridge within The trial court erred in overruling the mo- the city limits, and it was immaterial whether tions of appellants Tolleston Club and Walk- the city maintained a public park beyond the er for a venire de novo.

bridge or not. Other questions are presented for the con

(Ed. Note.-For other cases, see Bridges, Cent. sideration of this court; but, as the cause Dig. $$ 80, 96, 98, 109; Dec. Dig. 35.) will have to be tried again, we are of the 6. NEGLIGENCE 142_GENERAL VERDICT AS

FINDING opinion that they will not occur upon another


GENCE, trial and do not consider them.

In an action against a city for personal in. Judgment reversed, with instructions to jury resulting to the plaintiff from jumping off grant appellants' (Tolleston Club's and Walk- a bridge which had been raised while he was er's) motions for a venire de novo.

crossing, a general verdict for plaintiff was a

finding against the issue of contributory negliCOX, J., concurs in conclusion only.


[Ed. Note.-For other cases, see Negligence,

Cent. Dig. 88 400-403; Dec. Dig. Om 142.) (186 Ind. 149) MICHIGAN CITY v. WERNER. (No. 22858.)* 17. BRIDGES Ow46(4, 6)-ACTIONS FOR INJU

BURDEN OF PROOF - SUFFICIENCY OF (Supreme Court of Indiana. Dec. 19, 1916.

EVIDENCE. On Petition for Rehearing, Feb. 21, 1917.)

In such action, the burden of the issue of 1. MUNICIPAL CORPORATIONS 741(1) contributory negligence was upon the defendant, TORTS—NOTICE OF INJURY-STATUTE.

and, to maintain the issue, it was required to Burns' Ann. St. 1914, § 8962, requiring a show that the evidence without dispute showed written notice, containing a description of the a state of facts from which the court could say, time, place, cause, and nature of an injury to as a matter of law, that the plaintiff was guilty be given a city within 60 days thereafter, applies of negligence. to actions and damages to persons or property [Ed. Note.-For other cases, see Bridges, Cent. from any defect in the condition of any bridge, Dig. $$ 115, 119; Dec. Dig. Om 46(4, 6).] street, etc., and does not apply in an action for injury resulting from the negligence of the city's 8. BRIDGES Cw46(12)--ACTIONS FOR INJURIES agent in failing to use due care in raising a -QUESTION FOB JURY-CONTRIBUTORY NEGbridge.

[Ed. Note.- For other cases, see Municipal In such action, held that the question of Corporations, Cent. Dig. $ 1562; Dec. Dig. En contributory negligence was for the jury. 741(1).]

(Ed. Note. For other cases, see Bridges, Cent. 2. NEGLIGENCE Om113(1) - PLEADING - Con- Dig. $ 120; Dec. Dig. Om 46(12).] TRIBUTORY NEGLIGENCE. Under Burns' Ann. St. 1914, § 362, making


CONCLUSIVENESS. contributory negligence in personal injury cases wholly a matter of defense, it is unnecessary to

A verdict in an action against a city for negative contributory, negligence, and a com

personal injury having determined that plaintiff plaint is sufficient, unless the facts stated affirm- out power to disturb the verdict on the evidence.

was not negligent, the Supreme Court was withatively disclose the defense of contributory negligence.

(Ed. Note.-For other cases, see Appeal and [Ed. Note.--For other cases, see Negligence, Error, Cent. Dig. $$ 3923, 3924; Dec. Dig. En Cent. Dig. § 186; Dec, Dig. Om113(1).]



In an action against a city for personal inA complaint for damages resulting from the jury, where plaintiff jumped from a bridge negligence of a city in raising a bridge on which which was raised while crossing to go fishing, plaintiff was traveling, alleging that the city and when pot on the way to visit a pleasure exclusively operated and controlled the opening park beyond, his rights would not be affected by and closing of the bridge and employed an oper- the fact that the city bad granted concessions ator to warn and keep off travelers when the for places of amusement in the park and was bridge was about to be raised, and that the deriving a benefit therefrom. operator saw and knew that plaintiff was about (Ed. Note.-For other cases, see Bridges, Cent to go up the bridge, etc., sufficiently alleged that Dig. $$ 96, 103-105, 109; Dec. Dig. Om37.) the operator was acting as the agent of the city.

[Ed. Note.-For other cases, see Municipal 11. APPEAL AND ERROR Cw231(3)— EVIDENCE Corporations, Cent. Dig. $ 1584; Dec. Dig.

- OBJECTION. 753(2).]

An objection to evidence, on the ground that

it is immaterial or irrelevant presents no ques4. MUNICIPAL CORPORATIONS Ono 74542-Neg- tion for review. LIGENCE OF AGENT- LIABILITY. Persons employed by cities are agents of the

(Ed. Note.-For other cases, see Appeal and city, discharging corporate duties, and the city Error, Dec. Dig. Om231(3); Trial, Cent. Dig. is liable for their acts of negligence performed $ 199.] in the discharge of such duties.

12. APPEAL AND ERBOB Cm 232(2)-OBJECTION [Ed. Note.-For other cases, see Municipal TO EVIDENCE-GROUNDS. Corporations, Cent. Dig. $8 1568, 1569; Dec. Grounds not presented as an objection to the Dig. Om74512.)

evidence in the trial court cannot be considered 5. BRIDGES 35-PERSONAL INJURIES-NA-Ion appeal. TURE OF LIABILITY.

(Ed. Note.-For other cases. See Appeal and The purpose of plaintiff in going over a city Error, Cent. Dig. $$ 1430, 1431; Dec. Dig. Om bridge which was raised while he was upon it 232(2); Trial, Cent. Dig. § 211.) Par For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


13. TRIAL Om 252(8) INSTRUCTIONS Evi- | peril and in imminent danger caused by the negDENCE TO SUPPORT.

ligence of another. In an action against a city for personal (Ed. Note.-For other cases, see Trial, Cent. injury, where there was evidence that plaintiff Dig. 8 466; Dec. Dig. Om194(16).] was in a hospital and there incurred a bill, it

20. NEGLIGENCE 136(28) might be presumed that part of the bill was


JURY-ACTS IN EMERGENCY. paid for nursing, so that an instruction that it

In such action, whether plaintiff acted in an was proper to consider his expenses for hospital charges and nurses was not inapplicable to the emergency as ordinary prudence required under

the circumstances, considering the nature of evidence. [Ed. Note-For other cases, see Trial, Cent. plaintiff's judgment was affected by fear, was

the threatened danger and the extent to which Dig. 8 603; Dec. Dig. 252(8).)

for the jury. 14. NEGLIGENCE 141(9) INSTRUCTIONS (Ed. Note.-For other cases, see Negligence, LAST CLEAR CHANCE.

Cent. Dig. $$ 340, 341; Dec. Dig. Om 136(28).} In an action against a city for personal in

CONTRIBUTORY NEGjury from jumping from a bridge raised while 21. NEGLIGENCE Cw 72

LIGENCE-EMERGENCY, plaintiff was crossing, an instruction that, if there was time in the exercise of ordinary care

Contributory negligence should not be imfor the bridge tender to have stopped and lower- puted to one on account of any act done in ated the bridge after seeing plaintiff's dangerous mind was deprived of all judgment on account

tempting to escape threatened danger, where his position, and the bridge tender failed to exer- of a reasonable fear occasioned by a danger to the jury might find defendant guilty of negli- which he was exposed by another's negligence. gence was not an instruction on the law of the [Ed. Note.-For other cases, see Negligence, last clear chance.

Cent. Dig. $$ 99, 100; Dec. Dig. Ow72.] [Ed. Note.-For other cases, see Negligence, 22. APPEAL AND ERROR Om1064(2) HARMCent. Dig. 8 392; Dec. Dig. Cm141(9).)

LESS ERROR-INSTRUCTIONS-EMERGENCY. 15. BRIDGES 46(13)-ACTIONS FØR INJURIES contributory negligence so conclusively as to

Where the evidence did not show want of -INSTRUCTIONS-NEGLIGENCE.

Such instruction, merely telling the jury enable the court to say that the verdict for that, if the operator of the bridge failed to use plaintiff could not bave been different, an inreasonable care to observe the plaintiff on the struction, invading the province of the jury on bridge and started to raise it as plaintiff was the question of plaintiff's due care in the emercrossing, the jury might find defendant guilty of gency, was reversible error. negligence, was correct so far as it went.

(Ed. Note.-For other cases, see Appeal and [Ed. Note. For other cases, see Bridges, Cent. Error; Cent, Dig. 88 4221, 4222; Dec. Dig. Dig. § 121; Dec. Dig. Om 46(13).]

1064(2); Trial, Cent. Dig. & 475.)


ING INSTRUCTION. ERROR-INSTRUCTIONS. Such instruction, if susceptible of construc- find for defendant if plaintiff was negligent in

A requested instruction that the jury should tion as an instruction on the last clear chance, entering upon the bridge in an attempt to cross would be harmless, where the bridge tender tes- it was properly refused, as it would have contified that he did see plaintiff from the time he ficted with an instruction that, if plaintiff's inwent upon the bridge until the accident hap-jury was immediately caused by the bridge tenpened.

der's negligence after he saw plaintiff's danger[Ed. Note-For other cases, see Appeal and ous situation and his failure to use ordinary care Error, Cent. Dig. § 4220; Dec. Dig. @m1066.] to avoid injury, plaintiff was entitled to re17. NEGLIGENCE Om 83—LAST CLEAR CHANCE. cover.

The last clear chance doctrine has no place (Ed. Note. For other cases, see Trial, Cent. in the law except as it bears upon and affects Dig. 88 564, 565; Dec. Dig. Om 243.} the law on the subject of contributory negli

Appeal from Circuit Court, St. Joseph gence.

(Ed. Note.-For other cases, see Neghigence, County; Walter A. Funk, Judge. Cent. Dig. $ 115; Dec. Dig. Om 83.]

Action by William F. Werner against the 18. BRIDGES +46(13)—ACTIONS FOR INJURIES City of Michigan City. Judgment for plain-INSTRUCTIONS—WARNING.

tiff, and defendant appeals. Reversed, with An instruction that, if the plaintiff was deaf instruction to sustain defendant's motion for when he went upon the bridge, the bridge tender

a new trial. if knowing of his deafness, must have used such care as was necessary under the circumstances Theron F. Miller, of Michigan City, and · to warn plaintiff that he was about to raise the Anderson, Parker, Crabill & Crumpacker, of bridge, though it would have been more accurate if the word "reasonably” had been used before South Bend, for appellant. M. R. Sutherthe word “necessary," construed as an instruc- land and R. N. Smith, both of La Porte, and tion on the care required of the bridge tender, Forrest Smith, of Columbus, Ohio, for apwas not reversible error.

pellee. [Ed. Note.-For other cases, see Bridges, Cent. Dig. $ 121; Dec. Dig. Omw 46(13).]

LAIRY, C. J. This is an appeal from a 19. TRIAL 194(16)-INSTRUCTIONS — PBOV- judgment in an action for damages occaINCE OF JURY-EMERGENCY.

sioned by the negligence of appellant city. In such action, an instruction that, even if plaintiff might have escaped injury by trying to

The first question presented for consideraget off the bridge instead of running toward tion arose upon the action of the court in the approach and jumping off, he was not re- overruling the demurrer to the complaint. sponsible for his acts done while in imminent It appears from the complaint that appeldanger or sudden peril, caused by the pegligence lant city maintained a bridge within its limof defendant, invaded the province of the jury by stating, as matter of law, that a person its extending across the city harbor and conis not responsible for his act done under sudden necting the north end of Franklin street with

Bano For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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