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Ind.)

CASE v. RICHASON.

Stone Company, and transfer to defendant a certain tract of real estate, containing about four acres, defendant would pay the plaintiff therefor the sum of $4,000; that plaintiff did procure and transfer the said stock to defendant; and that defendant waived the transfer of the real estate, and now refuses to pay said sum, or any part thereof. This is open to the objection that the allegation that the defendant waived the transfer of said real estate is not the statement of a fact, but a conclusion. The paragraph does not show a performance of the agreement by plaintiff. The contract, in the absence of an averment to the contrary, is presumed to be in parol, and, being for the conveyance of real estate, is within the statute of frauds.

The fifth paragraph alleges that the defendant is indebted to the plaintiff in the sum of $4,000, with interest thereon for one year, for 202 shares of stock in the Crafton Stone Company, sold to the defendant by the plaintiff, a bill of particulars of which is made There was no a part thereof by exhibit. error in overruling the demurrer to this paragraph.

The court erred in overruling the demurrers to the first, second, and fourth paragraphs. As it does not appear upon what paragraph the verdict was returned, the judgment must be reversed.

The judgment is reversed, with instructions to sustain the demurrers to the first, second, and fourth paragraphs of the complaint.

(29 Ind. App. 331)

CASE v. RICHASON, Sheriff, et al.
(Appellate Court of Indiana, Division No. 1.
June 18, 1902.)

ADMINISTRATRIX-FUNDS OF ESTATE-RECOV-
ERY OF SHARE BY HEIR-CONTRIBUTION.
1. The mother of two daughters received as
administratrix certain money belonging to her-
self and them in equal shares, and invested a
portion in certain property, spending the re-
mainder. Thereafter one daughter recovered
judgment against her mother for her share,
and decree that such property be sold to pay
the judgment. The property sold for enough
to pay such judgment, and while the money
was in the sheriff's hands the other daughter
brought this action, alleging such facts, that
she had not received her share, and that her
mother had no other property, and praying
that the money in the sheriff's hands be di-
vided between her and her sister. Held, that
plaintiff was not entitled to any part of such

money.

Appeal from circuit court, Cass county; D. H. Chase, Judge.

Action by Jessie Case against Napoleon B. Richason, sheriff, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

G. E. Ross, for appellant. M. Winfield and
Lairy & Mahoney, for appellees.

HENLEY, P. J. The appellant, a minor, by her next friend began this action to re

cover her alleged interest in certain moneys received by the appellee, the sheriff of Cass county, Ind., from the sale of property by him. The appellee Mabel Nelson claims the same money as her individual property. Appellees jointly and severally demurred to the complaint. These demurrers were sustained by the court. Appellant refused to amend or plead further, and judgment was therefore rendered in favor of appellees. The errors assigned question the ruling of the trial court on the demurrers to the complaint.

The appellant by her complaint alleged that in February, 1891, Charles B. Case was killed while in the performance of his duties as a passenger conductor for the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company; that he left surviving him, as his only heirs at law, Martha J. Case, his widow, the appellant, Jessie Case, their child, and the appellee Mabel Nelson, a child by a former marriage; that her father at the time of his death was a member of, and had his life insured in, the Voluntary Relief Department of the Pennsylvania Lines West of Pittsburg, for the sum of $1,200, payable to his wife, Martha J. Case, and evidenced by a certificate in said department; that in June following his death said Voluntary Relief Department, and said the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, made and entered into an agreement with said widow by which they agreed that if she would cancel and deliver up said certificate and release said railway company from liability they would pay her $5,000, which agreement was performed in August, 1891: that at the request of said relief department and said railway company said widow qualified as administratrix of her husband's estate, and when they paid her said $5,000 she, as such administratrix, executed to them a receipt therefor; that with $2,000 of said money she purchased the east half of lot 5, in Neenah Simpson's addition to Logansport, and the balance of said $5,000 she used for the support of herself and child; that subsequently, in June, 1899, Mabel Nelson, the child by the former marriage, recovered a judgment in the Cass circuit court against Martha J. Case, widow, by which it was adjudged and decreed that $3,800 of the sum received by her was a trust fund, and, after the deduction of $500 for the widow, belonged equally to said widow and said children, Jessie Case and Mabel Nelson, and that said Mabel Nelson should recover $1,250.70, which should come out of said real estate, which was trust property; that in September, 1899, a copy of said decree was issued and delivered to the sheriff of Cass county, who sold said property, and realized therefor the sum of $1,350. It is also alleged that appellant is entitled to her one-third interest in said trust fund; that no part thereof Lad ever been paid to her; that there is no other property than the property sold out of which her share, or any part of it, can be collected; that said Martha J. Case is insolvent, and has

no property subject to execution; that Mabel Nelson is insolvent, has no property subject to execution, and is a nonresident of Indiana. Appellant then alleges that the judgment recovered by said Mabel Nelson, declaring said property trust property, was for, and inured to the benefit of, appellant, and the money received by the sheriff from the sale thereof is a trust fund, in which appellant has an interest equal to, and the same as, Mabel Nelson. She then alleges that said Winfield and Lairy & Mahoney are made parties because they claim to have and hold a lien on said judgment for $700 as and for attorney's fees for services alleged to have been rendered by them to and for said Mabel Nelson, but that said pretended claim and lien is unjust, without foundation, and fraudulent, and made for the purpose of enabling them to get possession of any sum of money realized from the sale of said property. She then asked that the rights of herself and Mabel Nelson in and to said money received by the sheriff for the sale of said property be adjusted and declared equal, and that he be required to pay over one-half thereof to appellant; that the pretended lien of Winfield and Lairy & Mahoney be canceled, etc.

It thus appears that the railroad company paid over to Martha J. Case $5,000. Of this amount $1,200 was her individual money paid to her on her relief certificate. The balance, $3,800, was paid over and belonged to said Martha J. Case as administratrix of her deceased husband, and it was her duty to distribute it amongst the heirs of the said deceased. She wholly failed to account to the heirs for the money. She purchased real estate, and paid for it the sum of $2,000, out of this money which belonged to the heirs.

As is said by counsel for appellees, this is in its nature a suit for contribution between heirs. Appellee Mabel Nelson has received her distributive share of her father's estate in full, and appellant, Jessie Case, another heir, who has received no part of her share, brings this action to enforce contribution. Appellee Mabel has not received anything more than belongs to her. She has simply, by diligence, reduced her interest in the estate to possession. If appellant cannot secure her interest, it is not the fault of appellee Mabel, nor is it because said appellee has received more than her distributive share. The deficit is caused by the fact that the administratrix wasted the estate. In the very similar case of Lupton v. Lupton, 2 Johns. Ch. 614, the court said: "There is a distinction running through the cases between an original deficiency of assets and where the assets were sufficient, but had been wasted by the executor. In the former case the legatee who has been paid more than his portion under the deficiency must refund, but in the latter case he is not obliged to, for he has received no more than what was due him, and the other legatee must look to the executor. The legatee who has been paid

shall retain the advantage of his legal diligence." In the same effect, see Trustees v. Cole, 20 Barb. 321; Story, Eq. Jur. § 92; Sims v. Sims, 10 N. J. Eq. 158. There was originally in the hands of the administratrix enough money to have paid to the appellant an amount equal to that which appellee Mabel received. It was by the diligence of said appellee that she secured her portion, and, under the rule stated in the above cited authorities, she has a right to retain it.

The complaint being insufficient as against Mabel Nelson, it necessarily follows that it is insufficient against the other appellees, because, if the money is the property of said Mabel, the acts of the other appellees in relation thereto do not concern appellant. We find no error. Judgment affirmed.

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1. A complaint questioned for the first time on appeal will be held sufficient if it states facts sufficient to bar another action.

2. A general verdict for plaintiff in an action against a street railway company for injury received by walking into a rope stretched across the street by defendant while repairing a broken feed wire is not overcome by answers of the jury to interrogatories, though one of them is that the method used by defendant in fixing its broken wire was reasonably prudent, others being that the method was such as to have probably caused the injury to careful persons, that it could have better given warning of the rope by a guard and danger signal, that the light from the headlight of a car was not sufficient to reveal the presence of the rope to every one, and that plaintiff did not see it and could not have seen it by the exercise of ordinary care.

3. An instruction that when a person is about to cross a street he is required to exercise ordinary and reasonable care to observe any obstructions or danger in the street, and to look out for passing vehicles or such permanent obstructions as would ordinarily be expected therein, but not to anticipate and guard against obstructions which are unusual and not ordinarily to be observed in the exercise of reasonable and ordinary care in passing along or crossing a street, does not relieve a traveler from observing anything but vehicles and permanent obstructions.

4. An instruction that in estimating plaintiff's damages the jury may consider the nature and extent of her injuries, whether they were temporary or permanent, also any physical or mental pain or suffering, and, from all the facts shown by the evidence, may give her such damages as will fully compensate her for the injuries she has sustained, not exceeding the amount claimed, fairly informs the jury as to the facts they may consider.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by Mary A. Walton against the Indianapolis Street Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

F. Winter and W. H. Latta, for appellant. H. N. Spaan, for appellee.

WILEY, C. J. Three questions are presented by the assignment of errors for decision, to wit: (1) The sufficiency of the complaint; (2) the overruling of appellant's motion for judgment on the answers to interrogatories, notwithstanding the general verdict; and (3) the overruling of appellant's motion for a new trial.

The complaint avers that on a certain day in February, 1900, appellant stretched a rope along the southeast side of Massachusetts avenue, in the city of Indianapolis, for the purpose of putting in place a certain wire which was necessary for the operation of its electric system of street railways; that such rope was stretched in such manner as to extend over the street crossing of said avenue near Delaware and New York streets; that it was about three or four feet from the ground, and was so stretched in the nighttime; that immediately west of where said rope was stretched two lines of street railway were situated, lying side by side along said avenue; that at the time said rope was stretched street cars were being operated along said lines; that there were no warning lights out, nor any other warning to the public traveling over said crossing; that on the evening of said day, about 10 o'clock at night, appellee, in company with others, was going home from church, which was situated on the corner of New York and Pennsylvania streets; that plaintiff lived on Washington street, east of Delaware street; that in going home, traveling from the west, she crossed over the crossing of Massachusetts avenue where said rope was stretched; that appellee was a large woman, and was walking in the rear of her companions; that as she was crossing over said avenue she saw cars at some distance from her on the track on Massachusetts avenue; that she kept her eyes on them part of the time, looking out for any danger that might arise therefrom; that before she came to the rope stretched as aforesaid some men shouted, and she became somewhat confused, believing that there was danger from the cars approaching; that she walked rapidly over said crossing to get out of the way of the cars, and, not seeing the rope on account of her confusion and hurry, and because said rope was not visible to her because of its position as heretofore described, she ran into it, was thrown violently backward against the hard street, and injured. It is further charged that she received her injuries by reason of the negligence of appellant in stretching the rope as aforesaid, without proper safeguards, or warning, and at an improper height.

The sufficiency of the complaint is questioned for the first time on appeal, as it was not tested by demurrer below. In such case the degree of strictness is not applied to it as would be required had it been tested by

demurrer in the first instance. Railroad Co. v. Spahr, 7 Ind. App. 23, 33 N. E. 446. Where the complaint is tested for the first time on appeal by an assignment of errors, it will be held sufficient if it states facts sufficient to bar another action. Real Estate Co. v. Macy, 147 Ind. 568, 47 N. E. 147; Bertha v. Sparks, 19 Ind. App. 431, 49 N. E. 831; Cummings v. Girton, 19 Ind. App. 248, 49 N. E. 360; Town of Markle v. Hunt, 12 Ind. App. 353, 40 N. E. 280; Clark v. Maxwell, 12 Ind. App. 199, 40 N. E. 274. Under the rules stated we think the complaint sufficient.

There were propounded to and answered by the jury numerous interrogatories, and upon such answers appellant insists that it was entitled to judgment notwithstanding the general verdict. This insistence rests upon two asserted propositions, viz.: (1) That the answers show that appellant was not guilty of any negligence, and (2) that they do show that appellee was guilty of negligence contributing to her injury. If the answers to interrogatories disclose a want of negligence on the part of appellant, and contributory negligence on the part of appellee, then they are in irreconcilable conflict with the general verdict; for by the general verdict the jury resolved both of these questions in favor of appellee. The jury found that a feed wire, which was suspended from the poles, had broken a short distance northeast from where appellee was injured, and shortly before the accident; that the poles to which the wire was suspended were in the middle of the street; that at the time of the accident appellant's servants were engaged in repairing the broken wire; that in fixing the wire a rope was attached to it by block and tackle; one end of the rope was over the arm of one of the poles and the other end attached to the drawbar of a car; that the car was then backed for the purpose of raising the wire; that said car was thus backed when appellee was about to pass Massachusetts avenue. The jury found that as appellee was crossing the avenue there was a car approaching a short distance northeast of the crossing; that there was a headlight burning on the approaching car, and also on the car to which the rope was attached, which was headed in the opposite direction; that when appellee started across said avenue the car to which the rope was attached was standing a short distance southwest of her; that uppellee saw the car approaching from the northeast as she was about to pass upon the tracks; that she did not see the car to which the rope was attached; that the foreman in charge of the men fixing the broken wire was standing on the life guard of the car to which the rope was attached; that before appellee came in contact with the rope be said foreman) did not shout to the plaintiff "look out there is a rope," or words to that effect; that he did not shout or warn her of the rope until after she was hurt; that the motorman on the car approaching from the north

east did not warn appellee of the rope. The jury found that the rope was three-quarters of an inch in diameter, and that appellee was injured by coming in contact with it and being thrown down. Also, the headlight of the car to which the rope was attached did not sufficiently reveal the rope to every one; that when appellee started to cross the street she was not confused until she saw the car approaching from the northeast. Interrogatory 49 and the answer are as follows: "Could the plaintiff, if she had not been confused and had used ordinary care in looking, have seen said rope in time to have avoided contact with it by the use of ordinary care? Answer. No." It was also found that the method used by appellant in fixing the broken wire was reasonably prudent; that said method was such as to have probably caused the injury to careful persons who were in the vicinity; that appellant could have better given warning of the situation of said rope by placing a guard and danger signal at the point of danger. Counsel for appellant urge that the answers to interrogatories show that it was not negligent, for the reason that the method used in raising the wire was reasonably prudent; that the cars were only a short distance away, and because the headlight was above the rope and shone upon it. It is also claimed that the answers to interrogatories show that the jury imposed upon appellant a greater degree of responsibility than is required by law, because it is shown by the answers that, while the headlight was shining upon the rope, it was not sufficient to reveal it to every one, and that, while the method used was reasonably prudent, the jury found that appellant should have stationed a guard and light at the point of danger. We are now dealing with the question as to whether or not the answers to interrogatories are sufficient to override the general verdict, and such question involves the negligence of the appellant and the nonnegligence of the appellee. While the jury found that the appellant was fixing the broken wire in a reasonably prudent manner, they also found that the rope was not visible to every one, and that a safer plan would have been to place a guard or light at the point of danger. We do not think that this is placing upon appellant a greater degree of responsibility than the law requires. It is certainly a dangerous device to stretch a rope across a public street in the nighttime, where persons are continually passing to and fro, at such a height from the ground as to strike foot passengers, and not to properly guard and warn passengers of its presence and danger. The jury found that the light from the headlight on the car to which the rope was attached was not sufficient to reveal its presence to every one. This is the finding of a fact, and not inconsistent with the surroundIngs and conditions. The angle of vision, or the direction a traveler might be going, might easily account for this, for it is evident

that the reflection of the light from the headlight on the car would meet the vision of different persons, occupying different positions, with varying results. The answers to interrogatories show that appellee did not see the rope, and could not have seen it by the exercise of ordinary care in looking, in time to have avoided coming in contact with it. While the answers to interrogatories do not specially show that other travelers crossing the street as appellee was did not see the rope, yet answer to interrogatory number 46 discloses the fact that the light was not sufficient to reveal the rope to every one. While it is foreign to the question now under consideration, it is not out of place to state that the evidence shows that a gentleman who was crossing the avenue immediately in front of the appellee did not see the rope until he came in contact with it. The jury found that appellee was not warned of the danger by persons shouting to her, etc., until after she had been thrown to the ground. So we are confronted with this situation: Appellant

placed a dangerous obstruction across the street, failed to guard it by light sufficient to reveal it to every one, failed to place any danger signals of any character to warn travelers, and all this was the proximate cause of appellee's injury. Such act must be held to constitute negligence. The answers to interrogatories do not show that appellee was guilty of contributory negligence. We are unable to see anything in the answers to interrogatories inconsistent or irreconcilable with the general verdict. On the contrary, they strengthen and support the general verdict.

Under the motion for a new trial the only questions discussed are those arising upon the refusal of the court to give two instructions tendered by the appellant, and in giving three instructions upon the court's own motion. There was no error in refusing instructions Nos. 5 and 6, tendered by appellant, for the reason that the court gave other instructions which fully covered the questions embraced in those refused. It is not error to refuse an instruction though it correctly states the law, where the court fully and correctly instructed the jury upon the same subject-matter. Insurance Co. v. Sylvester, 25 Ind. App. 207, 57 N. E. 991, and authorities there cited; Railroad Co. v. Keiser, 25 Ind. App. 417, 58 N. E. 505.

By its eighth instruction the court told the jury that when a person is about to cross a public street in a city such person is required to exercise ordinary and reasonable care to observe any obstructions or danger that may be in the street; that the traveler is required to look out for the passing vehicles or such permanent obstructions as would be ordinarily expected to be found in the street; but that a person would not be required to anticipate and guard against obstructions which are unusual, and such as would not ordinarily be observed in the exer

cise of reasonable and ordinary care in passing along or across a public street. Objec tion is urged to this instruction because, as counsel say, it fails to say to the jury that a person under such circumstances is required to look and see what is in the street. Counsel are in error in this, for in the first part of the instruction the jury are told that a traveler on a public street is required to exercise ordinary care in observing any obstructions or dangers that may be in the street. This language is broad enough to include all obstructions that an ordinarily prudent person must observe. It is also objected to because the inference from the instruction is that a traveler is not bound to observe anything but vehicles and permanent obstructions. The instruction will not bear any such construction. The care which a traveler upon a public street is required to exercise to learn of and avoid danger is, as defined by the courts, ordinary and reasonable care. The measure of appellee's duty in this regard was fully and fairly stated to the jury by this instruction.

By the eleventh instruction, given by the court, and of which appellant complains, the Jury were told that, in case they found for the appellee, in estimating her damages they might take into consideration the nature and extent of her injuries; whether the same were temporary or permanent; also any physical or mental pain or suffering endured by her, if any had been shown by the evidence, and "from all the facts and circumstances surrounding the case as shown by the evidence, you may give her such damages as will in your judgment, under the evidence, fully compensate her for the injuries she has sustained, not exceeding the amount named in her complaint." While this instruction is not very happily worded, we do not find anything in it of suca objectionable a character as to warrant a reversal. We think the instruc tion fairly informed the jury what facts they might consider in fixing appellee's damages, and they were specifically told that they could only consider such facts and circumstances as were established by the evidence. These statements to the jury must be regarded as having reference directly to the manner appellee was injured, the extent of her injury, her mental and physical suffering, and all as disclosed by the evidence. The instruction was not erroneous.

Judgment affirmed.

INDIANAPOLIS ST. RY. CO. v. HOCKETT,1| (Appellate Court of Indiana, Division No. 2. June 24, 1902.)

STREET RAILWAYS-NEGLIGENCE-COM

PLAINT-LICENSE-WITHDRAW-
AL-EVIDENCE.

1. In an action against a street railway company, a complaint alleging that it was the custom of defendant to permit boys to board the cars to sell papers when signaled to by a pas

senger; that plaintiff, a newsboy of 12 years, was signaled to by a passenger who wished a paper, and stepped on the car, but before plaintiff reached the passenger the car started, and when going at great speed the couductor ordered plaintiff off, and approached him with such threatening language as to frighten him, and cause him to fall off, receiving severe injury,-states a cause of action.

2. Where it has been the custom of a street car company to permit newsboys to board its cars to sell papers to passengers, it is not negligence to revoke such license, and order such boys off the cars when standing still, or moving so slowly that they can get off with safety. Appeal from superior court, Marion county; James M. Leathers, Judge.

Action by David O. Hockett, by his next friend, against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. H. Latta and F. Winter, for appellant. Cox, Cox & Remster, for appellee.

COMSTOCK, J. Suit by appellee, by his next friend, to recover damages for personal injuries received by the alleged negligence of the appellant. A trial resulted in a general verdict in favor of appellee for $3,000, for which amount judgment was rendered.

The only specifications of error discussed question the action of the trial court in overruling the demurrer to the third paragraph of the complaint, the paragraph of the complaint upon which the cause was tried, and the motion of the appellant for judgment on the answers to interrogatories notwithstanding the general verdict. Other alleged errors are, under the rule, waived. For reasons that appear in the opinion for the consideration of this case, said paragraph will be treated as sufficient. Omitting the formal parts and the averment of corporate existence of appellant, it is, in substance, as follows: "That on said day, and long prior thereto, It was and had been the custom of said company to allow passengers traveling upon its cars to be supplied with newspapers by boys vending newspapers upon the streets of said city whenever passengers should summons such venders for such purpose; that one of the usual signals by passengers desiring to attract such venders was by whistling; that such custom and such method of signaling were known to the plaintiff on and prior to the 28th day of July, 1899; that upon such signal being given it was usual and customary, and permitted by the defendant, for such newspaper venders to board the defendant's cars, whereon such passengers desiring newspapers were riding, and supplying papers to such passengers; that the plaintiff, a carrier and vender of newspapers, was, on the 28th day of July, 1899, at about 5 o'clock in the evening, on the sidewalk of Pennsylvania street, north of and near Washington street, in said city, with newspapers for sale; that at said time one of defendant's cars had turned from Washington street into Pennsylvania street, going north, and

'Rehearing denied. Superseded by opinion, 67 N. E. 106. Rehearing denied.

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