the court in its instructions, without retiring, returned the following verdict on the issues joined between the cross-complainant Walker and appellee:

"We, the jury, find for the cross-complainant Amos W. Walker on his cross-complaint, against the plaintiff, Isabella Carson, that he is the owner of the following described real estate, to wit: An undivided interest amounting to five acres in the north half of the northwest quarter, and the southeast quarter of the northwest quarter, and lots three and four, and the west thirty and thirty-one hundredths acres of lot two; all in section 17, township 36 north, range 8

[1] It will be noticed that this patent describes certain whole sections, fractional sections, and other tracts, containing in all 11,303.39 acres of land according to the official plats of survey of the said lands returned to the General Land Office by the Surveyor General. These provisions in the patent affirmatively disclose an intention or purpose to patent the lands surveyed, and not the areas meandered and returned, as shown upon the plat, as "Impassable Morass," and containing more than 1,900 acres of land. Therefore the lands of the "Impassable Mo-west, situated in Lake county, Ind. We furrass" were not conveyed by patent to the state of Indiana, either directly or indirectly, and remained the property of the United States. Chapman & Dewey v. St. Francis, supra; Producers' Oil Co. v. Hanzen, supra, and cases cited; Sizor v. City of Logansport, 151 Ind. 626, 629, 50 N. E. 377, 44 L. R. A. 814; Illyes v. White River Light Co., 175 Ind. 118, 93 N. E. 670.

There is here no claim that the appellee obtained any title to that portion of lots 2 and 3 in section 17 south of the meander line, except through the patent of her remote grantor, the state of Indiana. Therefore, the state having derived no title to the land from the government, appellee has no title whatever of record.

[2] The Supreme Court of the United States having declared as to what passed to the state under the patent to the state (Chapman & Dewey v. St. Francis, 232 U. S. 186, 34 Sup. Ct. 297, 58 L. Ed. 564), and that being a federal question, its decision must be followed by this court. Worth v. Wheatley, 183 Ind. 598, 606, 108 N. E. 958; Cleveland, etc., R. Co. v. Blind, 182 Ind. 398, 105 N. E. 483; Wabash R. Co. v. Priddy, 179 Ind. 483, 495, 101 N. E. 724; State ex rel. v. Terre Haute, etc., R. Co., 166 Ind. 580, 581, 77 N. B. 1077.

ther find that the cross-complainant Amos W. Walker is entitled to a tax lien upon the interest of the plaintiff, Isabella Carson, in the above-described real estate, amounting to $487.23, and is entitled to have said lien foreclosed."

The jury then retired to deliberate upon their verdict upon the remaining issues, and returned shortly into open court with the following verdict:

"We, the jury, find for the plaintiff, that her title to the lands described in her complaint be quieted in her."

Afterwards, on the 3d day of February, 1913, the same being the first judicial day of the February term, 1913, of the court, appellant club filed its motion for a venire de novo, for the reasons: (1) That there were two verdicts rendered in said cause; (2) that said verdicts are inconsistent with each other; (3) that, reading the general verdict in the light of the verdict in favor of the cross-complainant Walker, it appears that, if the verdict in favor of the latter is right, the verdict against this defendant is wrong; (4) that the jury's verdicts in this case are of such character that the court cannot render judgment thereon, as required by statute; (5) that the verdict in favor of crosscomplainant Walker is in contravention of the final judgment in favor of this defendant 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. 690, and Tolleston Club of Chicago v. Clough, 146 Ind. 93, 43 N. E. 647, wherein they conflict with Chapman & Dewey v. St. Francis, supra, and this opinion, are to that extent overruled.

The court's instruction numbered 4, complained of by appellant club, is erroneous for the reason that it instructs the jury that the patent of the state of Indiana to Aaron N. Hart conveyed all the lands both north and south of the meander line and extending southwardly to the south line of section 17. For error in the giving of instruction numbered 4 the judgment must be reversed.

said cause are ambiguous. Appellant Walker also filed his motion for a venire de novo for similar reasons as those assigned by appellant club.

Appellee then moved to amend the two verdicts, to which the appellants Walker and Tolleston Club each objected. By agreement of parties the above appellants filed their motions for new trial without waiving their rights under their motions for a venire de novo. The court afterward sustained appellee's motions to amend the two verdicts, amended them, and overruled appellants' motions for a venire de novo. Appellants contend 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 v.

Wright, 160 Ind. 515, 521, 67 N. E. 267; National Cash Reg. Co. v. Price, 41 Ind. App.

274, 83 N. E. 776.

The trial court erred in overruling the motions of appellants Tolleston Club and Walker for a venire de novo.

Other questions are presented for the consideration of this court; but, as the cause will have to be tried again, we are of the opinion that they will not occur upon another trial and do not consider them.

Judgment reversed, with instructions to grant appellants' (Tolleston Club's and Walker's) motions for a venire de novo.

COX, J., concurs in conclusion only.

(186 Ind. 149)

could not affect his right to recover for injury resulting from his jumping off the bridge, where it appeared that he was a member of the pub-. lic in the proper use of a public bridge within the city limits, and it was immaterial whether the city maintained a public park beyond the bridge or not.

[Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 80, 96, 98, 109; Dec. Dig. 35.] 6. NEGLIGENCE 142-GENERAL VERDICT AS FINDING AGAINST CONTRIBUTORY NEGLIGENCE.

In an action against a city for personal injury resulting to the plaintiff from jumping off a bridge which had been raised while he was crossing, a general verdict for plaintiff was a finding against the issue of contributory negligence.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 400-403; Dec. Dig. 142.]

RIES · BURDEN OF PROOF- SUFFICIENCY OF
EVIDENCE.

In such action, the burden of the issue of contributory negligence was upon the defendant, and, to maintain the issue, it was required to show that the evidence without dispute showed a state of facts from which the court could say, as a matter of law, that the plaintiff was guilty of negligence.

MICHIGAN CITY v. WERNER. (No. 22858.)* | 7. BRIDGES 46(4, 6)—ACTIONS FOR INJU(Supreme Court of Indiana. Dec. 19, 1916. Ön Petition for Rehearing, Feb. 21, 1917.) 1. MUNICIPAL CORPORATIONS 741(1) TORTS-NOTICE OF INJURY-STATUTE. Burns' Ann. St. 1914, § 8962, requiring a written notice, containing a description of the time, place, cause, and nature of an injury to be given a city within 60 days thereafter, applies to actions and damages to persons or property from any defect in the condition of any bridge, street, etc., and does not apply in an action for injury resulting from the negligence of the city's agent in failing to use due care in raising a bridge.

[Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 115, 119; Dec. Dig. 46(4, 6).]

8. BRIDGES 46(12)-ACTIONS FOR INJURIES -QUESTION FOR JURY-CONTRIBUTORY NEGLIGENCE.

In such action, held that the question of

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1562; Dec. Dig.contributory negligence was for the jury. 741(1).]

2. NEGLIGENCE 113(1) - PLEADING-CON

TRIBUTORY NEGLIGENCE.

Under Burns' Ann. St. 1914, § 362, making contributory negligence in personal injury cases wholly a matter of defense, it is unnecessary to negative contributory negligence, and a plaint is sufficient, unless the facts stated affirmatively disclose the defense of contributory negligence.

com

[Ed. Note.-For other cases, see Bridges, Cent. Dig. § 120; Dec. Dig.

9. APPEAL AND ERROR
CONCLUSIVENESS.

46(12).]

999(3)—VERDICT

A verdict in an action against a city for personal injury having determined that plaintiff was not negligent, the Supreme Court was without power to disturb the verdict on the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3923, 3924; Dec. Dig.

[Ed. Note.-For other cases, see Negligence, 999(3).] Cent. Dig. § 186; Dec. Dig. 113(1).]

3. MUNICIPAL CORPORATIONS 753(2) -AC-10. BRIDGES 37-PERSONAL INJURIES-LIATION FOR INJURY-COMPLAINT AGENCY FOR BILITY FOR. CITY.

A complaint for damages resulting from the negligence of a city in raising a bridge on which plaintiff was traveling, alleging that the city exclusively operated and controlled the opening and closing of the bridge and employed an operator to warn and keep off travelers when the bridge was about to be raised, and that the operator saw and knew that plaintiff was about to go up the bridge, etc., sufficiently alleged that the operator was acting as the agent of the city. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1584; Dec. Dig. 753(2).]

In an action against a city for personal injury, where plaintiff jumped from a bridge which was raised while crossing to go fishing, and when not on the way to visit a pleasure park beyond, his rights would not be affected by the fact that the city had granted concessions for places of amusement in the park and was deriving a benefit therefrom.

[Ed. Note. For other cases, see Bridges, Cent. Dig. §§ 96, 103-105, 109; Dec. Dig. 37.] 11. APPEAL AND ERROR -OBJECTION.

231(3)-EVIDENCE

An objection to evidence, on the ground that it is immaterial or irrelevant presents no ques

4. MUNICIPAL CORPORATIONS 7451⁄2-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. 231(3); Trial, Cent. Dig. is liable for their acts of negligence performed 8 199.] in the discharge of such duties.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1568, 1569; Dec. Dig. 7452.]

5. BRIDGES 35-PERSONAL INJURIES-NATURE OF LIABILITY.

The purpose of plaintiff in going over a city bridge which was raised while he was upon it

12. APPEAL AND ERROR ~232(2)—OBJECTION TO EVIDENce-GroundS.

Grounds not presented as an objection to the evidence in the trial court cannot be considered on appeal.

[Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 1430, 1431; Dec. Dig. 232(2); Trial, Cent. Dig. § 211.]

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

In an action against a city for personal injury from jumping from a bridge raised while plaintiff was crossing, an instruction that, if

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 466; Dec. Dig. 20. NEGLIGENCE

136(28)

194(16).]

QUESTION FOR

JURY-ACTS IN EMERGENCY.

In such action, whether plaintiff acted in an emergency as ordinary prudence required under the circumstances, considering the nature of the threatened danger and the extent to which

plaintiff's judgment was affected by fear, was

for the jury.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 340, 341; Dec. Dig. 136(28).] 21. NEGLIGENCE 72 - CONTRIBUTORY NEG

LIGENCE-EMERGENCY.

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 cise such care, but continued to raise the bridge, which he was exposed by another's negligence. the jury might find defendant guilty of negligence 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. 72.] 22. APPEAL AND ERROR 1064(2) LESS ERROR-INSTRUCTIONS EMERGENCY. Where the evidence did not show want of contributory negligence so conclusively as to enable the court to say that the verdict for plaintiff could not have been different, an instruction, invading the province of the jury on the question of plaintiff's due care in the emergency, was reversible error.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 392; Dec. Dig. 141(9).] 15. BRIDGES 46(13)-ACTIONS FOR INJURIES

-INSTRUCTIONS-NEGLIGENCE.

Such instruction, merely telling the jury that, if the operator of the bridge failed to use reasonable care to observe the plaintiff on the bridge and started to raise it as plaintiff was crossing, the jury might find defendant guilty of negligence, was correct so far as it went. [Ed. Note.-For other cases, see Bridges, Cent. Dig. 121; Dec. Dig. 46(13).] 16. APPEAL AND ERROR 1066 — HARMLESS

ERROR-INSTRUCTIONS.

pened.

HARM

Such instruction, if susceptible of construcA requested instruction that the jury should tion as an instruction on the last clear chance, find for defendant if plaintiff was negligent in would be harmless, where the bridge tender tes- it was properly refused, as it would have conentering upon the bridge in an attempt to cross tified that he did see plaintiff from the time he flicted with an instruction that, if plaintiff's inwent upon the bridge until the accident hap-jury was immediately caused by the bridge tender'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. 1066.] to avoid injury, plaintiff was entitled to re17. NEGLIGENCE 83-LAST CLEAR CHANCE. Cover. The last clear chance doctrine has no place in the law except as it bears upon and affects the law on the subject of contributory negligence.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. 115; Dec. Dig. 83.] 18. BRIDGES 46(13)-ACTIONS FOR INJURIES

-INSTRUCTIONS-WARNING.

An instruction that, if the plaintiff was deaf when he went upon the bridge, the bridge tender if knowing of his deafness, must have used such care as was necessary under the circumstances to warn plaintiff that he was about to raise the bridge, though it would have been more accurate if the word "reasonably" had been used before the word "necessary," construed as an instruction on the care required of the bridge tender, was not reversible error.

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

19. TRIAL 194(16)-INSTRUCTIONS-PROVINCE OF JURY-EMERGENCY.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. 243.]

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by William F. Werner against the City of Michigan City. Judgment for plaintiff, and defendant appeals. Reversed, with instruction to sustain defendant's motion for a new trial.

Theron F. Miller, of Michigan City, and Anderson, Parker, Crabill & Crumpacker, of South Bend, for appellant. M. R. Sutherland and R. N. Smith, both of La Porte, and Forrest Smith, of Columbus, Ohio, for appellee.

LAIRY, C. J. This is an appeal from a judgment in an action for damages occasioned 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 negligence 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

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