is not shown that he did not know of appellee's peril and the facts stated require an inference that he either did or ought to have known it. Indianapolis St. Ry. Co. v. Seerley (Ind. App.) 72 N. E. 169. As against this finding of fact presumptions are ineffective. The facts here involved are much stronger than those which were considered by this court in the case last cited, which is conclusive upon the proposition that there was no error in overruling appellant's motion for judgment upon the answers to interrogatories, notwithstanding the general verdict.

The assignment that the court erred in overruling appellant's motion for a new trial, presents the question as to whether the evidence sustains the verdict, and the action of the court in giving and refusing to give certain specified instructions. Appellee traveled upon the right hand side of the street until he was opposite a house where he desired to go, and for that purpose and reason turned to drive across the street. The house was midway in the block, and he or any other person desiring to go there had a perfect right to cross the street in front of it. The street car company did not have an exclusive right to any part of the highway, and while, because of the character of the vehicle used by it and the manner of such use, it does have a preferential right to the portion occupied by its tracks, other persons using the street are not excluded from using that portion thereof on which the track is laid. Citizens' St. Ry. Co. v. Hamer. 29 Ind. App. 426, 62 N. E. 658, 63 N. E. 778; De Lon v. Kokomo, 22 Ind. App. 377, 53 N. E. 847; Indianapolis, etc., Co. v. Slifer (Ind. App.) 74 N. E. 19; Hennessey v. Taylor (Mass.) 76 N. E. 224; Bedell v. Detroit, etc. (Mich.) 92 N. W. 349; Robards v. Indianapolis St. Ry. Co., 32 Ind. App. 297, 306, 66 N. E. 66, 67 N. E. 953. Appellee testified as follows: "I started to go across, and as I went I kind of angled across to get around in front of Baker's house. I was above the house a little, and I wanted to get across." The car was at that time 225 feet distant. He further testified that he looked north when he started to drive across and saw the car, and which he subsequently ascertained to be e distance above stated, and did not see how fast it was coming until it was two or three cars' lengths away, at which time it was coming "awful fast. It was kind of rocking and puffing like a threshing machine. I seen I couldn't cross, and I pulled the horse around to my left. I was trying to get off the track. I did not try to go across the track because the car would have hit the buggy in the center. I pulled the horse around as short as I could. I did not get the buggy cramped. I was going angling southwest. The front buggy wheel was toward the track and the car struck it." The car was run at a high speed up to the very time of the collision, 20 miles an hour, as found by the jury in answer to interroga

tories, although there was evidence that it was running at a still higher rate. The evidence of a civil engineer, who was near, was that it ran 140 feet or more after the collision before it was stopped. The jury in answer to interrogatories as heretofore stated, fixed such distance at 60 feet. The undisputed evdence is that a car running at 20 miles an hour could be stopped in 60 feet. It does not appear that the motorman exercised or attempted to exercise the slightest control over it prior to the accident. His opportunity to observe the buggy driving toward and across the track was not limited. He knew the rate of speed at which he was running, and his ability or inability to control it, and thus advised, his failure to check or attempt to check speed, after he saw appellee driving toward and upon the track, affords support to the verdict. It is noticeable that the motorman was not a witness. Indianapolis St. Ry. Co. v. Darnell, 32 Ind. App. 687, 694, 68 N. E. 609.

The eighth instruction given by the court is substantially the same as the seventh instruction given in Indianapolis St. Ry. Co. v. Seerley, supra, and approved by this court. It, in connection with the other instructions given, states the doctrine known as that of "the last clear chance"-a doctrine firmly established on both principle and authority. Except for it, the greater the original negligence of a defendant and the more gross its delinquency, the less likelihood of a recovery against it on account of injury thereby caused. It serves the broadest principles of public policy. The state is interested, not alone that justice be done in a given instance, but that the law be so declared as that it will tend to the security of life and limb. The government is dependent upon its citizenship, not only politically, but economically, and high as the duty which devolves upon the courts of protecting acquired rights of property is, it is subordinate to the one which has as its object the uninterrupted enjoyment of that personal security which is incident to human existence, and in which every individual is entitled to the fullest protection which society can give. And therefore the language of the Supreme Court of Indiana, which follows: "It is now perfectly well settled that the paintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is longer disputed." Southern Indiana R. Co. v. Fine, 163 Ind. 617, 72 N. E. 589, and authorities on page 626 of 163 Ind., page 592 of 72 N. E. The doctrine has been many times stated and applied to facts similar to those under consideration, as shown by the

following cases and authorities therein cited. | Citizens' St. Ry. Co. v. Hamer, supra ; Indianapolis St. Ry. Co. v. Schmidt, supra; Indianapolis St. Ry. Co. v. Marschke, supra; Indianapolis Traction & Terminal Co. v. Smith (No. 5,736; May 29, 1906) 77 N. E. 1140; Indianapolis St. Ry. Co. v. Seerley, supra; Cleveland, etc., Ry. Co. v. Klee, 154 Ind. 430, 56 N. E. 234.

The instructions given by the court fully cover the case and fairly submitted the issues of fact. The questions upon which the application of the foregoing rule was dependent, were properly left to the jury. There was therefore no error either in the instructions given according with the propositions above stated, or in refusing those antagonistic thereto.

Judgment affirmed.

ROBINSON, C. J., and MYERS, J., concur. BLACK, J., concurs in result.

COMSTOCK, P. J. (dissenting). The facts specially disclose that, at the time of the accident, appellee was 40 years old, in the full possession of his physical and mental faculties; driving a gentle horse, under complete control, which he might have stopped at any time or place; that when his horse was on the east track nothing prevented his knowing the close proximity of the car. All his acts in attempting to cross the tracks were voluntary. There was no necessity or emergency controlling his movements. Nothing was done by appellant to mislead or deceive him, or throw him off his guard. The car was coming toward him, and he could have observed its movements at all times when it was within 500 feet. When the horse began to turn toward the tracks, the car was about 225 feet away; when on the east track, 125 feet away; when on the space between the two tracks, 60 feet away. He made a miscalculation of the time he would have to cross in front of it and concluded that he would have time to cross the track. When he was 10 feet from the place of the accident he was traveling about 3 miles and the car about 20 miles an hour, and 125 feet away. When he was 20 feet from the place of the accident he was traveling about 5 miles and the car about 20 miles an hour 225 feet away. When he was 30 feet from the place of the accident he was traveling 5 or 6 miles and the car 20 miles an hour. He first came into danger when he was about 10 feet from the place of the accident, which distance he traveled until he was struck. He did not think to observe the car while he was driving over the east track and the space between the tracks. Plaintiff was familiar with the location and all its conditions. The accident happened in a sparsely settled part of the city, 160 feet from the nearest intersecting street. Facts are found from which it may be inferred that the car might have been stopped within 60 feet. It is manifest that had he observed

the car while on the east track or on the space between the tracks he could have avoided the injury. These findings conclusively show that appellee voluntarily and needlessly encountered danger apparent to casual observation, under circumstances free from confusion and inconsistent with ordinary prudence. He simply miscalculated the time it would take him to cross and get out of the way. Many cases can be cited holding injured parties to have been guilty of contributory negligence on facts not more clearly indicating rashness than in the case at bar. De Lon v. Kokomo, etc., Co., 22 Ind. App. 377, 53 N. E. 847, a decision of the question of appellee's negligence; Young v. Citizens' St. Ry. Co., 148 Ind. 54, 44 N. E. 927, 47 N. E. 142; Citizens', etc., Co. v. Helvie, 22 Ind. App. 515, 53 N. E. 191; Indianapolis St. Ry. Co. v. Tenner, 32 Ind. App. 3311, 67 N. E. 1044; Indianapolis St. Ry. Co. v. Marschke (May 18, 1906; No. 20,830) 77 N. E. 945; Robards v. Indianapolis St. Ry. Co., 32 Ind. App. 297, 66 N. E. 66, 67 N. E. 953; Indianapolis St. Ry. Co. v. Zaring, 33 Ind. App. 297, 71 N. E. 270, 501; Marchal v. Indianapolis St. Ry. Co., 28 Ind. App. 133, 62 N. E. 286; Kessler v. Citizens', etc., Co., 20 Ind. App. 427, 50 N. E. 891; Moran v. Leslie (Ind. App.) 70 N. E. 162; Korrady v. L. S. & M. S. R. Co., 131 Ind. 261, 29 N. E. 1069; L. E. & W. R. Co. v. Pence, 24 Ind. App. 12, 55 N. E. 1036. While all reasonable presumptions are indulged in favor of general verdicts, yet if the answers returned by the jury are irreconcilably in conflict therewith, they will overthrow the general verdict. While the general verdict finds that the plaintiff was free from contributory negligence, the facts specially found show plaintiff to have been guilty of contributory negligence and are irreconcilably in conflict with that verdict. Cleveland, etc., R. Co. v. Heine, 28 Ind. App. 163, 62 N. E. 455; Bedford, etc., Co. v. Thomas, 29 Ind. App. 85; 63 N. E. 880.

It is contended, however, that appellee's conduct is not contributory negligence, because appellant could have avoided the injury, by the use of ordinary care, after discovering the exposed situation of appellee. This claim is based upon the doctrine of "last clear chance." To knowingly inflict injury when such injury can be avoided by the use of ordinary care, amounts to willfulness. The motorman is not required to assume that an adult, in the full possession of his faculties, will needlessly expose himself to danger. The motorman was not bound to anticipate that appellee would turn upon the track. When the appellee turned, the danger became imminent upon the hypothesis that he would continue across the track. The car was then 60 feet off. It required this distance to stop the car. This gave the motorman no time to apprehend the dangerous situation in which the appellee had placed himself. Up to the time of plaintiff's entering upon the track, no danger was to be apprehended from the speed of the car, for the accident occurred between

crossings. The motorman had as much reason to anticipate that appellee was in time to cross the track in front of the moving car as had the appellee to believe that he could do so. If two parties are contemporaneously in fault and by their mutual negligence an injury ensues to one, the doctrine of "last clear chance" does not apply. Robards v. Indianapolis St. Ry. Co., supra; Everett v. Los Angeles, etc., R. Co., 115 Cal. 105, 43 Pac. 207, 46 Pac. 889, 34 L. R. A. 350. If it had been apparent to the motorman that the horse was frightened or that appellee for any reason had lost control of the horse and was in danger, then it would have been the duty of the motorman to stop the car if possible. Citizens' St. Ry. Co. v. Lowe, 12 Ind. App. 54, 39 N. E. 165, and cases cited. The doctrine under consideration applies when it is apparent that the party is in a position of danger from which he cannot extricate himself. C., C., C. & St. L. R. Co. v. Klee, 154 Ind. 430, 56 N. E. 234; Krenzer v. P., C., C. & St. L. R. Co., 151 Ind. 587, 43 N. E. 649, 52 N. E. 220, 68 Am. St. Rep. 252; Dull v. C., C., C. & St. L. R. Co., 21 Ind. App. 571, 52 N. E. 1013. To justify the application of the doctrine in this case, the motorman must have had the "last clear chance"; that is, evident and last to have avoided the danger

after he had learned of it and knew that the safety of appellee depended solely upon him. Daily observation of human conduct does not lead to the conclusion that sane adults will place themselves in positions of open danger. The motorman was not required to assume that the appellee would court danger or disregard all prudence, and when appellee's danger became apparent there was not time and space to stop the car.

It is insisted, in this case, by the appellee that even if he was negligent in going upon the track, when he was struck was struck by the car that negligence had ceased, because he was attempting to get out of the way of the approaching car; that after his negligence there was a change in the situation, and a new act of negligence was imputable to appellant, which became the proximate cause of the injury. If appellee was guilty of negligence in going upon the track then whether he was injured in attempting to go backward or forward in the instant of his injury, to get out of the way of the car, could make no difference. The rule of the "last clear chance" does not apply where the act of the injured party and the defendant are substantially concurrent. The conduct of the defendant in driving upon the track, cannot be separated from the injury. No court will hold that a railroad company may run down a party though he is negligently on its track, when by the exercise of ordinary care it can be avoided. No more can the driver of a private vehicle commit a like brutality. DefendDefendants have been held liable when such acts have occurred, either because they showed willfulness or a want of due care. The majority The majority

opinion overthrows the doctrine, well recognized, that one cannot hold another responsible for errors of his own judgment. In effect it says that to be excused from the results of one's negligence, it is but necessary for the injured party to show that he erred in his judgment. Negligence should not be encouraged, either upon the part of common carriers or travelers. The prevailing opinion holds out to one willing to risk his life or limb in an unnecessary danger to cross a railway in full view and in front of an approaching car, the assurance that if he is unfortunate enough to receive injury, he shall be compensated therefor, notwithstanding the rashness of his own unnecessary act. All decisions up to this time hold that the duties and rights of the traveler and the common carrier are reciprocal. Such decisions are held for naught in the prevailing opinion.

Being of the opinion that contributory negligence is still a defense in actions of this character, and that such defense is clearly established by the special finding of facts and the appellee's own testimony, I am unable to agree in the opinion affirming the judgment.

WILEY, J. (dissenting). From the facts specially found, I am clearly of the opinion that appellee was shown to be guilty of contributory negligence which would preclude his recovery. If the doctrine declared in the prevailing opinion is to obtain, it seems to me that the rule of contributory negligence is taken out of cases of this character.

(74 Ohio St. 208) DORSCH v. BEAUMONT GLASS CO. (Supreme Court of Ohio. May 1, 1906.) MUNICIPAL CORPORATIONS-STREETS-POWER TO NARROW.

The provisions of section 1536-148, Rev. St. 1906, which empower a court of common pleas to establish or vacate a street or alley, do not authorize such court to narrow the same. [Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 720.] (Syllabus by the Court.)

Error to Circuit Court, Belmont County. Petition of the Beaumont Glass Company for the vacation of a city street. George Dorsch, an abutting owner, moved to strike the petition from the files. A judgment vacating the street was affirmed in the circuit court, and Dorsch brings error. Reversed and petition dismissed.

On the 9th day of September, 1901, the Beaumont Glass Company, a corporation and defendant in error, filed its petition in the court of common pleas of Belmont county, addressed to one of the judges of said court, of which the following is a copy, omitting caption and signature: "The Beaumont Class Company, a corporation duly incorporated and organized under the laws of the state of West Virginia, respectfully represents that it is the owner of lots numbers 202 and 203

in the city of Martins Ferry, Belmont county, Ohio, formerly known as lots 227 and 228, and a piece of ground east thereof and between said lots and the Ohio river, and known as 'lots 3 and 4'; that all said lots are in the immediate vicinity of the part of Clay street in said city hereinafter described, the said lot No. 202 and said lot 3 abutting upon the north line thereof, between the points hereinafter described and the portion of said street hereinafter asked to be vacated. The said Beaumont Glass Company respectfully requests that that part of Clay street along the south side of said lot 202 and said lot 3, hereinbefore mentioned, between Front street and the Ohio river and for the width of 14 feet between said Front street and the Ohio river, be vacated, for the reasons that the same is no longer of any public use whatever; and that the same never has been and never will be used by the public; that it will not be detrimental, but will conduce to the general interest of said city, that the said portion of said street be vacated." Notice of the filing and pendency of the petition was given by publication in a newspaper of general circulation in the county as the law directs.

The plaintiff in error, George Dorsch, who owns lot 2 abutting on that part of Clay street sought to be vacated, filed a motion to strike the petition from the files, because it was not verified. His motion was overruled and the court permitted the petition to be verified. He then filed a demurrer to the petition on two grounds: (1) The court has no jurisdiction of the subject-matter of the petition; (2) said petition does not state sufficient facts to authorize the court to grant the relief prayed for. The demurrer was overruled and exception taken. Dorsch answered, alleging in substance, his ownership of lot 2 in said city, giving its boundaries by different streets, and that it abutted on that part of Clay street sought to be vacated: that Clay street is 66 feet in width, and that to vacate the 14 feet along one side thereof would narrow the street to 52 feet between Front street and the Ohio river. He further alleges that if said strip is vacated, the petitioner will take possession thereof, and that if the same is vacated he will be damaged in the sum of $1,000. There is another paragraph in the answer, not material to the consideration of the case here. The petitioner demurred to the answer, and the demurrer was overruled. The reply denies all the averments of the answer, except that Dorsch owns lot 2, and that it is bounded as described in the answer. The court heard evidence on the issues joined, found for the petitioner and ordered vacation as prayed for, awarding to Dorsch damages in the sum of one dollar. A bill of exceptions was taken and error prosecuted in the circuit court here the judgment was affirmed.

Driggs & Heinlein, for plaintiff in error. George Duncan, for defendant in error.

PRICE, J. (after stating the facts). The petition filed in the court of common pleas, did not ask for the vacation of Clay street between Front street and the Ohio river, but of a strip 14 feet in width on one side of Clay street between Front street and the Ohio river. The evident effect of granting the prayer of the petition was to narrow said street between those points, from 66 to 52 feet in width, and the question is, had the court authority to make such an order? This question was raised by demurrer to the petition, and the ruling upon it by the court of common pleas was assigned for error in the circuit court, and its judgment upon the question is now challenged in this court. If we decide that the demurrer should have been sustained, other matters in the record and discussed by counsel need not be considered. The only authority conferred on the court of common pleas, to either establish or vacate a street or alley, within a hamlet or municipal corporation, is found in section 1536-148 (section 2655), Rev. St. 1906, which reads: "On petition filed in the court of common pleas by any person owning a lot in any city or in an incorporated or unincorporated hamlet or village, for the establishment or vacation of a street or alley in the immediate vicinity of such lot, the court upon hearing, and being satisfied that it will conduce to the general interests of such city, hamlet or vil lage, may declare such street or alley established or vacated; but the remedy shall be in addition to those prescribed in this title." The next section prescribes the character of notice to be given of the filing and pendency of the petition, and provides for the right of any person other than the petitioner, who owns a lot in the immediate vicinity of the street or alley prayed to be vacated or established, to claim damages, and that on such claim the court may hear proof in reference thereto and render judgment against the petitioner for such damages as it may think just, and that a jury may be demanded as in other cases, etc. It is well enough to trace this legislation, as it will afford aid in its construction when compared with other legislation authorizing the councils of municipal corporations to establish, vacate or narrow streets and alleys.

The first provision on the subject to which we have access, was made in 1828, in “an act to provide for the vacation of town plats, and for other purposes." 29 Ohio Laws, p. 352. This was amended March 5, 1839, to read in part as follows:

"Section 1. That on petition filed in the court of common pleas of any county in this state by any person or persons owning any lot or lots in any town or city in the said county, praying that any alley or alleys, street or streets, in the immediate vicinity of such

lot or lots, may be established or vacated, the said court may, and they are hereby authorized, upon hearing and being satisfied that it will conduce to the general interests of such town or city, to declare such alley or alleys, street or streets, established or vacated." See 37 Ohio Laws, p. 44.

The next section (2) provides for the mode of procedure, the right of another lot owner. to claim damages, etc., in all respects similar to the mode prescribed in the present statute. Omitting a few surplus words, the act of March 5, 1839, above quoted is present section 1536-148 (2655), Rev. St. 1906, except that its last clause, "but the remedy shall be in addition to those prescribed in this title," was not in the old act. The act of March 5, 1839, was carried into Swan & Critchfield Statutes, word for word, as found in volume 2, p. 1487.

In 1878 (see 75 Ohio Laws, p. 161) the statutes relating to municipal corporations were revised and amended so as to form a Code of municipal law, and section 15, p. 391, of that revision is precisely the same as our present statute on the subject, and there, for the first time appears the clause, "but the remedy shall be in addition to those prescribed in this title." There is significance in this fact when it is seen that the three preceding sections provide "for vacation of streets by council," thus bringing into juxtaposition the different provisions respecting the vacation of streets and alleys. See sections 12, 13, 14, and 15 of 75 Ohio Laws, pp. 390, 391. In 1879, section 15 of the Code of 1878 was slightly amended, but the change is of no importance here. See 76 Ohio Laws, p. 25. The same provision, omitting surplus words, is found in the revision of all our statutes in 1880. Thus we have the history of the jurisdiction of the court of common pleas over the establishment or vacation of streets and alleys, and in none of the stages of the legislation in all its past history, do we find authority given the court to narrow a street or alley, unless that authority is included in the word "vacate." In each was given the power to establish and vacate streets and alleys, and that is the only power vested in the court by the statute on that subject. However, there is authority for narrowing streets and alleys, and it is conferred on the council of a city or village by section 1536-145 (section 2652), Rev. St. 1906, which reads in part: "The council of any city or village, on petition by any person owning a lot in the corporation praying that a street or alley in the immediate vicinity of such lot may be vacated or narrowed, or the name thereof changed, may upon hearing and being satisfied that there is good cause for such change of name, vacation or narrowing, that it will not be detrimental to the general interest, and that the same should be made, declare by ordinance such street or alley vacated, narrowed, or the name thereof changed," etc.

The next section provides for notice of the filing and prayer of the petition by six weeks publication; and section 1546-147 provides that "the order of council vacating or narrowing any street or alley which has been dedicated to public use by the proprietor, shall to the extent to which the same is vacated or narrowed, operate as a revocation of the acceptance thereof by the council; but the right of way and easement therein of any lot owner shall not be impaired thereby." It is sufficient for the purposes of this case, that we trace the principal features of the above sections back as far as 1853 and to the act of the Legislature passed March 11, 1853 (51 Ohio Laws, p. 366), § 13, and which was amended by section 3 of an act passed April 29, 1854. See 52 Ohio Laws, p. 75. By the original and the amended section, "the city council of any city or incorporated village of this state, on petition filed by any person or persons owning any lot or lots, in any such city or incorporated village, praying that any street or streets, alley or alleys, in the immediate vicinity of such lot or lots, may be vacated or narrowed, may, and they are hereby authorized upon hearing and being satisfied that there is good cause for such vacation or narrowing, and that it will not be detrimental to the general interest, and that the same should be made, declare such street or streets, alley or alleys, vacated or narrowed. ***" There was a provision for notice by publication for a certain time before the hearing on the petition. The above section is found in exact terms in the revision by Swan & Critchfield (volume 2, p. 1531). It was a part of "an act to provide for the organization and government of municipal corporations," passed May 7 1869 (66 Ohio Laws, p. 149), and known therein as section 491. Several sections of that act, including 491, were amended April 18, 1870. See 67 Ohio Laws, p. 78. In the amendment the power to change the name of the city or village was added. As such, it was carried into the revision of 1880. We find it again with a slight amendment made in 1893. See 90 Ohio Laws, p. 350. In substance, if not literally, we so find it now.

In their origin, and in the different revisions and amendments, the statute authorized the council on proper petition and notice to vacate or narrow streets or alleys, and when codification of the statutes for the organization and government of municipal corporations took place, the statutory authority for councils to vacate and narrow streets and alleys was brought in close relation to the statute authorizing a court of common pleas to establish or vacate streets and alleys. They were kindred provisions from their first inception, and have long ago been brought together as they are now found. What is the fair inference to be drawn from the comparison we have made? It is, that from the very first creation of the authority in the court and in the council of the city