dence to sustain the verdict appellant takes the position that the evidence shows that appellee was guilty of contributory negligence. The same questions are presented with reference to this as are presented and considered with reference to the motion for judgment on the answers to interrogatories. For the reasons above stated, we hold that the evidence is sufficient to sustain the verdict. are not available to the driver of horses, and the facts suggested, if they appear from the evidence, are all proper for the consideration of the jury in determining what precautions ordinary care required the driver of a motor car to use under the circumstances of the particular case. After all is said, however, the driver of a motor car is required to use only ordinary care; but what he should do in the exercise of due care must depend on [6] Complaint is made of instruction No. the conditions surrounding him, as shown by 7, tendered by appellee and given by the the evidence, and the means available for court, in that the court informs the jury controlling the speed and managing the car. that the leaving of a car extending 7 or 8 It is entirely proper for the trial court, in feet out into Sixth street was negligence per its instructions, to advise and direct the se, when the question of negligence should jury that in the consideration of such ques- have been left to the jury. There was evitions it should take into account the char-dence that the car was in the street and acter of the vehicle in which the injured under section 2671, Burns 1914 (Acts 1905, party was riding, and the manner and method of its control, etc.; but, when such court in any case attempts to fix a standard or quantum of care different from that above indicated, it intrenches on the right of the trial of such question by the jury. Sections 65, 249, Burns 1914; Balzer v. Waring, 176 Ind. 585, 95 N. E. 257, 48 L. R. A. (N. S.) 834; Pittsburgh, C., C. & St. L. Ry. Co. v. Dove, 111 N. E. 609, and cases cited. In support of its contention appellant cites a number of cases: Railway v. Maidmant, 168 Fed. 21, 93 C. C. A. 413; Brommer v. Penn. Ry., 179 Fed. 579, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924; Chase v. Central Ry. Co., 208 Mass. 137, 94 N. E. 377; Spencer v. New York Central, 123 App. Div. 789, 108 N. Y. Supp. 245; McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972; Northern Pacific Ry. v. Tripp, 220 Fed. 286, 136 C. C. A. 302. It claims that some of these cases announce as a matter of law just what acts should be done and what precaution should be taken by the drivers of motor cars in approaching railway crossings. Some of the cases cited, and especially Brommer v. Penn. Ry., seem to lend support to appellant's contention; but, if they are to be held as sustaining the proposition announced, they are contrary in principle to the rule announced in the Supreme Court of United States. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485. The rule announced would also be in conflict with the principles of law herein announced, and would be contrary to the settled rule declared by the decisions of this state. Pittsburgh, C., C. & St. L. Ry. Co. v. Dove (1916) 111 N. E. 609, and cases there cited. [5] By the general verdict the jury found that appellee exercised ordinary care, and this court cannot say as a matter of law that any of the acts or omissions shown by the answers to interrogatories and relied on by appellants as constituting negligence per se, were necessarily required of appellee in the exercise of ordinary care. The court did not err in overruling appellant's motion for judgment in its favor on the interrogatories. In presenting the insufficiency of the evi p. 584), it is a misdemeanor for a conductor or other person to permit a car to remain across a public street. This is negligence per se. The car shut off the view of the other track from appellee, and certainly contributed to the injury. The violation of a statutory duty is negligence per se. Cleveland, etc., Ry. Co. v. Tauer (1911) 176 Ind. 624, 96 N. E. 758, 39 L. R. A. (N. S.) 20. [7] Complaint is next made by appellant of the refusal of the court to give instruction numbered 3 tendered by it. This instruction sets out the substance of sections 10465, 10476, Burns 1914, regulating the speed of automobiles, and requiring the owner thereof to register, etc., and closed by telling the jury that if appellee, when injured, was operating his automobile in violation of any of such provisions, he could not recover, and that its verdict should be for the defendant, although it was found guilty of negligence. Without intimating that the instruction was applicable to any phase of the case presented by the evidence, it is sufficient to say that the last clause thereof was fatally prejudicial to appellee, and made the refusal to give it proper. Under it any violation of any of the provisions of the statute would defeat recovery by appellee, though such violation did not remotely contribute to his injury. The The refusal to give instruction No. 10, tendered by appellant, is urged as error. closing part of this instruction is as follows: "And if you find that because of obstructions or other conditions it was impossible for plaintiff to learn whether or not a train of cars was approaching the Sixth street crossing, and he could, with little inconvenience, have left his car and gone ahead on foot, and have satisfied himself whether or not cars or a train was approaching said crossing, then I instruct you that under circumstances it was his duty, in the exercise of due care, to have alighted from his car and gone ahead and looked, and he is guilty of contributory negligence if he did not do this, and he cannot recover." For the reason indicated in our discussion of the answers to interrogatories, this instruction was properly refused. [8] There was no error in refusing to give instruction No. 12, tendered, for, assuming that it correctly states the law, it was sufficiently covered in the instructions given. There was no proof that it was ever published, and, under the statute in force when Appellant contends that the court erred it was passed, the record showing its adopin excluding from the evidence a certified tion did not furnish presumptive evidence copy of an ordinance of the city of Nobles-that it was in effect. ville, section 1 of which limited speed of an [12] Appellant asserts that the law in automobile or other vehicle drawn by steam, force at the time of the trial made the recelectricity, gasoline, or other mechanical pow-ord showing the adoption of the ordinance er to 6 miles per hour within the corpora- presumptive evidence of its passage and gotion limits of said city, and provided that ing into effect, citing section 52 of the Cities the ordinance should not apply to vehicles and Towns Act (Acts 1905, p. 219; Burns run upon steel rails. The second section 1914, § 8654). The section to which we are provided that the driver of any such vehicle cited is a part of the general act providing as is described in section 1 shall give a for the government of towns and cities. signal when approaching any street crossing The section deals with the legislative in the city of Noblesville, and also prescribes power of cities, and confers power on the care to be exercised by such drivers in the council of cities to pass ordinances for turning the corners of streets and on meet- the government of the city. It prescribes the ing or overtaking vehicles drawn by horses. manner in which ordinances shall be passed, Section 3 provides a penalty for the violation and provides that no ordinance shall become of any of the provisions of the ordinance. a law or operative until it has been signed by the presiding officer of the council and approved in writing by the mayor, or passed over his veto. It further provides that all ordinances shall, within a reasonable time after their approval by the mayor or their passage over his veto, be recorded in a book kept for that purpose by the city clerk. Such record shall include the signature of the presiding officer, the attestation of the clerk, and the mayor's written approval or disapproval, and in the latter case a memorandum of the passage of the ordinance over the veto, with the date of each of such acts. Such record, or a certified copy there. of, shall be presumptive evidence of the pas sage and going into effect of such ordinance. The last sentence of this section clearly refers to a record made in the manner prescribed in the section and recorded in the book kept for that purpose as therein provided. It cannot be held to apply to the ordinance offered in evidence in this case. [9] Appellee asserts that the ordinance was properly excluded, for the reason that it was not properly pleaded as a defense by a special answer. It was offered for the purpose of laying a foundation for the proof of facts showing the violations of some of its provisions as showing negligence per se. The statute providing that the burden of proving contributory negligence in a certain class of cases shall rest on the defendant also provides that such evidence may be given under the general denial. It has been held that proof of the existence of an ordinance and evidence to show its violation may be proved to show contributory negligence, without being specially pleaded. Horace T. Wood Transfer Co. v. Shelton (1913) 180 Ind. 273, 101 N. E. 718. [10] As every presumption is indulged in favor of the ruling of the trial court, it must be assumed on appeal that some sufficient ground existed which justified the court in excluding the offered evidence. If the ruling of the trial court was correct for any reason, it will be upheld on appeal. The court will search the record to affirm. State ex rel. Garn v. Board of Election Com'rs of Marshall Co., 167 Ind. 276, 78 N. E. 1016, and cases cited. [11] The ordinance offered in evidence was passed in 1903, and provided that it should take effect after its publication for two weeks in the Daily Ledger, “the first of which publications shall be made on the day and the second on the day of said month, 1903." The ordinance is penal in its character. A statute in force at the time this ordinance was passed provided: "Every by-law imposing a penalty or forfeiture for the violation thereof shall, before the same shall take effect, be published two weeks consecutively in some newspaper published in the city." Burns' Ann. St. 1901, § 3535. Unless it was shown that the ordinance had become effective by virtue of its publication in accordance with the statute, the [13] It has been held in this state that an ordinance which has not been published in accordance with the statute is without force or effect. Loughridge v. City of Huntington, 56 Ind. 253; Meyer v. Fromm, 108 Ind. 208, 9 N. E. 84. In the case of Lake Erie & Western R. R. Co. v. Brafford, 15 Ind. App. 655, 43 N. E. 882, 44 N. E. 551, it was held that, where an ordinance was admitted in evidence without objection, the court on appeal would assume that it was in force and effect, even though no evidence was offered as to its publication. The question arose in that case on the question of the sufficiency of the evidence to sustain the verdict. The court said: "In the decision of this case, we go no further than to hold that, under the facts here involved, the jury was justified in holding the ordinance in force. This course will, in our opinion, as a rule, produce just and proper results; for, if there really be any controversy as to the publication, the party can, by objection to the introduction, call for the proof." This case was followed in the later case 230, 87 N. E. 28. In neither of these cases | lant from building the bridge in question unwas it held, or even intimated, that a penal ordinance could be properly admitted in evidence without proof of publication, where its admission was objected to at the time for that reason; but, on the contrary, it was clearly intimated that, if the question had been properly raised by an objection, the court should have declined to admit the ordinance in evidence unless its publication was first proved. As the drainage law does not determine the order in which the sections of a proposed drain shall be constructed, and does authorize additional assessments necessary to complete a work judicially established, and in view of Burns' Ann. St. 1914, § 361, requiring all defenses excepting denial of facts alleged, to be pleaded specially, and section 386, providing that under a mere denial of any allegation no evidence shall be introduced which does not tend to negative the allegation, in a proceeding to compel compliance with a judgment requiring the defendant railroad to construct a bridge to allow a drain to pass under its tracks, since the fact that the drain had not been completed up to that point would not constitute a bar to the relief sought, such fact was admissible under general denial for consideration by the court, together with other facts affecting the terms of its decree in its discretion. [Ed. Note. For other cases, see Drains, Cent. Dig. 61; Dec. Dig. 55.] 2. EVIDENCE 69-PRESUMPTIONS. In a proceeding to compel defendant railroad to construct a bridge to allow a drain to pass under its tracks, the Appellate Court must presume that proper steps will be taken to finish the drain as ordered, and cannot pass on issues of fact raised by defense that the drain had not been completed up to the point at which the bridge was required. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 90; Dec. Dig. 69.] til sufficient funds are provided for completing the remainder of the improvement of which it is a part. Particular attention is directed to the statement in our original opinion that the matters suggested by the second, third, and fourth paragraphs of appellant's answer, if sustained by proof, "might affect the terms and conditions of the court's order," and error is claimed in our holding that these matters were provable under the general denial. It is true that, under our Code, "all defenses, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially" (section 361, Burns 1914), and that, "under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove" (section 386, Burns 1914). In relying on these statutory provisions, however, appellant misconstrues our decision concerning the extent to which the facts pleaded in the affirmative answer may affect the issues. If sufficient to constitute a legal defense to appellee's petition, they would necessarily have to be pleaded specially, and it would be error to strike out an answer which contained such defense; but the circumstances here relied on do not in any sense constitute a bar to the relief which is sought. They present only matters of fact which the trial court may consider, together with other facts and circumstances, in so fixing the terms of its decree as, in its discretion, shall seem right and just. Proof of these facts is admissible under the general denial on the same principle that evidence of circumstances which tend only to reduce the amount of recovery may be so received in an action for damages. [2] It must be borne in mind: (1) That the drainage law does not determine the order in which the several sections of a proposed improvement shall be constructed; and (2) that it does authorize the levy and collection of additional assessments, if necessary, to complete a work which has been judicially established. This court must presume that Appeal from Circuit Court, Wabash Coun- proper steps will be taken to finish the drain ty; N. G. Hunter, Judge. as ordered and cannot pass on issues of On petition for rehearing. Former opin fact such as appellant seeks to present. ion modified and petition denied. For former opinion, see 113 N. E. 997. J. D. Conner, Jr., of Wabash, and Stuart, Hammond & Stuart, of La Fayette, for appellant. Plummer, Todd & Plummer, of Wabash, for appellee. However, since the time heretofore fixed for the construction of the bridge in question has expired during the pendency of this appeal, it is obvious that the court's order must be modified in that particular. On serious reconsideration of the matters presented, we conclude that this cause should be, and it is, remanded to the Wabash SPENCER, J. [1] Appellant has earnestly circuit court, with instructions to fix such requested a reconsideration of the issues time for the completion of said bridge by appresented by this appeal, to the end, either pellant as shall seem fair and reasonable that a rehearing may be granted and the de- under all the circumstances in issue. In cree of the Wabash circuit court in all all other respects the judgment of that court things reversed, or that the judgment of af- is affirmed, and appellant's petition for a firmance be so modified as to relieve appel-rehearing is overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (186 Ind. 43) RENNER v. HANNA et al. (No. 23022.) (Supreme Court of Indiana. Jan. 30, 1917.) 1. PLEADING 364(1)—STRIKING OUT MATTER-ACTION TO CONTEST WILL-COMPLAINT. The construction of a will not being in issue in an action to contest it, neither it nor a deed made a part thereof by reference has a place in the complaint, and may be struck out, being filed with it as part thereof. deeds were without consideration; that they were not delivered until after the death of the testator, which occurred October 29, 1912, and that the grantees at no time took possession of said lands, but that possession thereof remained in the testator until his death; that said deeds are of no force and effect, except as vitality is given them by the terms of the said will; that the making of said will was unduly influenced by said [Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 1156, 1158, 1160; Dec. Dig. devisees and others for the fraudulent pur364(1).] pose of obtaining more of said estate than the legal share of said devisees; that said devisees and others so induced said provisions of said will for the purpose of giving validity to said deeds; that the execution of the deeds and the will constituted "one and the same transaction." [1] The will and the deeds are, by copies, made parts of the complaint as Exhibits A. Appeal from Circuit Court, Morgan Coun- B, and C, respectively. ty; Nathan A. Whitaker, Judge. Action by Emma L. Renner against Sarah "Appellant relies solely for a reversal upon" alleged "error of the court in striking C. Hanna and others. From an adverse judg-out parts of the second amended complaint," ment, plaintiff appeals. Affirmed. and presents this question by each of her asSaid motion to strike signments of error. Hickam & Hickam, of Spencer, and J. E. Sedwick and A. M. Bain, both of Martins-out embraced all the allegations relating to ville, for appellant. Will H. Pigg and S. C. the deeds; the substance thereof being above Kivett, both of Martinsville, for appellees. stated. Treating this complaint as one to contest a will, the rules bearing upon such motion to strike out are as follows: HARVEY, J. Appellant was plaintiff and contestant of a probated will in the trial court. The trial resulted in a verdict and a judgment sustaining the will. Appellant describes the action as one to contest a will; and this is evidently the proper theory of the complaint. The plaintiff alleged all the statutory grounds for contesting the will, using the language of the statute for such purpose, and in addition thereto alleged that said will purported to dispose of all the testator's property; that it purported to devise to Sarah C. Hanna certain real estate. The language of the will in this respect is: "It is my will that my daughter, Sarah C. Hanna, take no part of my estate, she having been fully provided for by deed to certain lands of date of May 2, 1908, which was reckoned at the purchase price in consideration of her agreement to aid in caring for me and my wife, Harriet Haase, in our old age, and she having paid me for subsequent improvements on said land, and said deed is her share of my estate in full." The same allegation is made as to a devise of real estate to Lewis Haase, the provision in the will as to this being as follows: "It is my will that my son, Lewis Haase, take no part of my estate, he having been fully provided for by deed to certain lands of date of May 2, 1908, which was reckoned at the purchase price, and he having paid for subsequent improvements on said land, said deed is his share in full." The will made a provision of $100 in cash for the wife, and the "rest and residue" of the estate was by the will given to certain other children. The will is not the foundation of the action. A copy of the will filed with the complaint as a part thereof did not become a part of the complaint. Schmidt v. Bomersbach, 64 Ind. 53; Summers v. Copeland, 125 Ind. 446, 25 N. E. 555. By the same rule deeds referred to in the will and set out as exhibits in the complaint are not parts of the complaint, and it is not error to sustain a motion to strike them out. Summers v. Copeland, 125 Ind. 466, 25 N. E. 555. V. Counsel for appellant cite Wheeler Loesch, 51 Ind. App. 262, 99 N. E. 502, in favor of their position. In that case the court was dealing with deeds which were delivered in escrow during the testator's life. The title had vested in the grantees, and the lands described were not a part of testator's estate at his death. "The deeds were valid as such, and were not a part of the will, though mentioned in it," and therefore the Appellate Court held that it was proper to strike from the complaint the reference to the deeds. The statement in the foregoing decision that it is error to strike out deeds which did not pass title prior to testator's death, and which were part of the testamentary disposition of the property, is not controlling in view of the facts involved. Counsel assert that the deeds are ineffective as such, and derive force only by virtue of being incorporated into the will by the language of the will itself, and are testamentary The complaint further alleges that said in character and a part of the will, and are thus subject to contest with the other parts transcript is filed as required by law, the death of the will. It does not follow, however, that, because reference to the deeds is necessary, as measuring the "rest and residue" of the estate, the deeds were so far a part of the will that they must be recorded in the clerk's office as a part of the will. The will, if sustained, is complete in itself, in that it identifies the deeds referred to. The deeds, whether recorded or not, when produced in any proceeding in connection with the will, show the property to be subtracted from the estate in ascertaining the "rest and residue." Counsel argue that it is proper to set out these deeds in the complaint to contest the will, in order that the will may be construed. The construction of the will is not in issue in a proceeding to contest. Clearspring Township v. Blough et al., 173 Ind. 15, 88 N. E. 511, 89 N. E. 369. It is not inconsistent with the above rule to hold that, when the will and such other papers as are by its terms and, in a sense, a part of it, or such as may be necessary to a clear understanding of it, are offered in evidence, the court shall construe the will and such other papers as the court did in Ditton v. Hart, 175 Ind. 181, opinion at page 191, 93 N. E. 961, for the information of the jury, in order that the jury may determine the issue of testamentary capacity and undue influence. The verdict, however, is to the effect only that the will is valid, or invalid, and its construction for other purposes, if valid, is open to later proceedings. It is well that the special character of a proceeding to contest a will be regarded; that the statutory provisions be closely adhered to. Confusion will probably result from any other practice. of an appellee after the appeal is prayed and ate the appeal, and the heirs and personal repbefore the filing of the transcript does not vitiresentatives of the deceased appellee are required to take notice of such appeal, and an assignment of errors with the prevailing party as appellee is sufficient. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1846-1850; Dec. Dig. 333.] 2. APPEAL AND ERROR 334(1)-DEATH OF APPELLEE ASSIGNMENT OF ERRORS AMENDMENT. transfer the judgment to his personal repreAs the death of an appellee operated only to sentatives or heirs or legatees, the fact that he died before the transcript was filed did not vitiate the appeal, but merely rendered a revivor necessary so that the Appellate Court had jurisdiction of the appeal and to allow an amendment of assignments of errors to make the decedent's heirs and personal representatives parties appellee after the expiration time allowed for filing the transcript. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1851; Dec. Dig. 334(1).} 3. APPEAL AND ERROR 721(2) ASSIGN MENTS OF ERROR-COPARTIES. If all parties against whom a verdict is rendered filed a motion for new trial assigning the same causes therefor, either jointly or severally, and a ruling is had and exceptions taken by all parties against whom the ruling is made either jointly or severally, the question is preof error whether made by one or all the parties sented to the Appellate Court on an assignment excepting to such ruling, either by joint or separate assignments. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2986, 2989; Dec. Dig. 721(2).] ACTIONS TO CONTEST 4. WILLS 288(1) - [Ed. Note.-For other cases, see Wills, Cent. shifted the burden to contestants of questions In a will case, error in an instruction which of duress and fraud was not cured by a later [2] The allegations of the complaint that the deeds were procured by wrongful and fraudulent conduct were stricken out by virtue of the ruling herein before mentioned. The striking out of these allegations of wrongful and fraudulent conduct in the procuring of the deeds was not harmful to contestant, as such matters were provable under the gener-clause of the same instruction and other instrucal statutory allegations remaining in the complaint. Clearspring Township v. Blough et al., 173 Ind. 15, opinion at page 24, 88 N. E. 511, 89 N. E. 369, and cases cited. There being no error in sustaining the motion to strike out part of the complaint, the judgment of the trial court is affirmed. (186 Ind. 56) JOHNSON et al. v. SAMUELS et al. (No. 22893.) tions that the burden is on the proponents to establish by a preponderance of the evidence that the will was not unduly executed, and that the testator was not unduly influenced to execute it, since the only manner in which the court may obviate the error given in an improper in struction is to withdraw it. [Ed. Note.-For other cases, see Trial, Cent. Dig. 710; Dec. Dig. 296(7).] 6. APPEAL AND ERROR REVERSIBLE ERROR. 1064(1)-REVIEW If by an instruction the burden of proof is placed on the wrong party, the judgment will be reversed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. 1064(1); Trial, Cent. Dig. § 553.] (Supreme Court of Indiana. Jan. 31, 1917.) 1. APPEAL AND ERROR 333-TERM TIME OF APPEAL-DEATH OF APPELLEE-EFFECT. Where an appeal was prayed in term and time given to file bill of exceptions and bonds, the filing of the bond within the time allowed relates back to the date the appeal is granted While undue influence is generally exerted and the time fixed for filing the bond, and if the by the beneficiary, a will may be invalid be 7. WILLS 155(1) UNDUE INFLUENCE PERSONS EXERCISING. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes |