1. A judgment notwithstanding the general verdict should not be granted by reason of special findings, unless the findings, construed strictly against the moving party, are in such conflict with the general verdict, construed with every reasonable intendment in its favor, that the two cannot exist together or be reconciled.

2. A judgment cannot be rendered on special findings in opposition to a general verdict, unless the findings are sufficient, when strictly construed, to warrant a judgment within the issues for the moving party.

3. The fact that special findings contradict each other only affects the findings, and does not impair the general verdict.

4. Where plaintiff was injured at a street railroad crossing, a finding that plaintiff was voluntarily driving across defendant's track when the accident occurred cannot be construed as a finding that plaintiff voluntarily encountered the danger.

5. Where plaintiff was injured at a street railway crossing, findings that plaintiff, having average capacity to see and hear, and knowing that his horse was afraid of cars, and that cars frequently ran on a certain track, attempted to drive across the track without stopping, though his view was obstructed by buildings and trees, but that he looked and listened, but did not see the car till his horse was going on the track, which was 151⁄2 feet from the curb, do not show contributory negligence authorizing judgment for defendant notwithstanding a general verdict for plaintiff.

6. In an action for injuries received at a street railway crossing, where the complaint avers that defendant's car was operated at a high and dangerous speed, such fact will be assumed, on motion by defendant for verdict on special finding notwithstanding a general verdict for plaintiff, in the absence of a finding as to the speed of the car, as the court, in passing on the motion, cannot consider the evidence received, but will assume that all issuable facts not included in the findings were established in plaintiff's favor.

Appeal from superior court, Howard county; Hiram Brownlee, Judge.

Action by Thomas O. McCoy against the Kokomo Railway & Light Company. From a judgment for defendant notwithstanding a general verdict for plaintiff, the plaintiff appeals. Transferred from appellate court under Acts 1901, p. 590 (Burns' Rev. St. 1901, 1337u). Reversed.

Blacklidge, Shirley & Wolf, for appellant. Kirkpatrick & Morrison, for appellee.

GILLETT, J. The appellant by his complaint charged the appellee with negligently causing its street car to collide with a buggy in which he was driving, thereby injuring him. On an issue formed by the filing of a general denial to the complaint the cause was submitted to a jury for trial. The jury returned a verdict for appellant, and also made answer to 59 interrogatories that the court, on the motion of appellee, caused to be submitted to such jury. The court

sustained a motion of appellee for judgment in its favor on the answers to interrogato ries, and rendered judgment accordingly. The appellant, in the manner required by law, has presented the question as to the propriety of the above rulings for our determination. It is contended by appellee's counsel, in support of the action of the trial court, that the answers to interrogatories affirmatively show that appellant was guilty of contributory negligence, and that it is also thereby shown that appellee was not guilty of negligence as charged.

In passing on a motion for judgment notwithstanding the verdict, it should be borne in mind that the verdict necessarily covers the whole issue, and that it solves every material fact against the party against whom it is rendered. To enable the latter to successfully interpose the special findings of the jury upon particular questions of fact as a reason for judgment in his favor, he must, at least, have special findings that stand in such clear antagonism to the general verdict that the two cannot coexist. Amidon v. Gaff, 24 Ind. 128; Ridgeway v. Dearinger, 42 Ind. 157; McCallister v. Mount, 73 Ind. 559; Cook v. Howe, 77 Ind. 442; Railway Co. v. Martin, 82 Ind. 476; Baldwin v. Shuter, Id. 560; Pennsylvania Co. v. Smith, 98 Ind. 42; Railroad Co. v. Lewis, 119 Ind. 218, 21 N. E. 660; Graham v. Payne, 122 Ind. 403, 24 N. E. 216; Railway Co. v. Trowbridge, 126 Ind. 391, 26 N. E. 64; Brewing Co. v. Parnin, 13 Ind. App. 588, 41 N. E. 471. In some of the cases

cited it was declared that the motion cannot be sustained unless the special answers constitute an insurmountable barrier to a recovery by the opposite party, while in other of said cases it was said that the answers will not control the verdict, if the verdict and the answers can be reconciled on the basis of any reasonable hypothesis. The court ought not to assume an attitude of unreason in ruling on such a motion, because that would be to abridge the operation of the interrogatory statute. To the end, however, that, unless clearly entitled to it, a party may not obtain a judgment to whom the jury evidently did not intend that a judgment should be awarded, and because of the presumption against the jury having been inconsistent in its findings, it is required that every reasonable intendment shall be indulged in favor of the general verdict, and that, on the other hand, the court shall strictly, and without favorable intendment, construe the answers to interrogatories against the moving party. Railway Co. v. Martin, supra; Railroad Co. v. McAnnally, 98 Ind. 412; Brewing Co. v. Parnin, supra, and cases there cited. It is not permitted that the court, in ruling on a motion for judgment based on the answers to interrogatories, should regard the evidence that was introduced upon the trial. Higgins v. Kendall, 73 Ind. 522; Stevens v. City of Logans

port, 76 Ind. 498; Railway Co. v. Martin, supra; Pennsylvania Co. v. Smith, supra; Cox v. Ratcliffe, 105 Ind. 374, 5 N. E. 5; Assurance Co. v. Wilson, 132 Ind. 278, 31 N. E. 938. The motion should be refused where the antagonism between the verdict and the answers to interrogatories is not such, on the face of the record, as to be beyond the possibility of being removed by any evidence legitimately admissible under the issues. Railroad Co. v. Lewis, supra; Railway Co. v. Creek, 130 Ind. 139, 29 N. E. 481, 14 L. R. A. 733; Shoner v. Pennsyl vania Co., 130 Ind. 170, 28 N. E. 616, 29 N. E. 775; Shuck v. State, 136 Ind. 71, 55 N. E. 993. If the answers to interrogatories are inconsistent as between each other, they operate to cancel or neutralize each other, and do not impair the general verdict. Railroad Co. v. McAnnally, supra; Redelsheimer v. Miller, 107 Ind. 485, 8 N. E. 447; Rice v. Manford, 110 Ind. 596, 11 N. E. 283; Shuck v. State, supra. As the motion that was made was for judgment upon the answers notwithstanding the verdict, it was required, in order to justify the sustaining of the motion, that the answers, in and of themselves, should be sufficient, when strictly construed, to warrant, in view of the issues, a judgment in favor of the moving party. Railway Co. v. Hunter, 33 Ind. 335, 5 Am. Rep. 201; Campbell v. Dutch, 36 Ind. 504; Rice v. City of Evansville, 108 Ind. 7, 9 N. E. 139, 58 Am. Rep. 22; Shuck v. State, supra.

It would needlessly prolong this opinion to exhibit the interrogatories and their respective answers. They are silent upon the question as to how fast the car was running. They show that the collision occurred in the nighttime, at the intersection of Washington and Jefferson streets in the city of Kokomo; that the appellant was crossing appellee's track that was situate on Washington street, in proceeding east, along Jefferson street, in a carriage, when a street car of appellee, approaching from the south, collided with his conveyance; that he was familiar with the fact that cars frequently ran on said track; that, as he was aware, his horse was afraid of street cars; that the view to the south on Washington street, as a traveler approached It on Jefferson street from the west, was obstructed by a building abutting upon the southwest corner of the street intersection; that at the west line of said intersection there was a view to the south of 50 feet; that there was an. arc light that was burning almost over the place where the collision occurred; that the car had an electric headlight that was burning brightly; that the motorman sounded the gong at a point 160 feet south of the place of collision; that, upon perceiving appellant's situation, the motorman reversed the current, but did not apply the brake; that appellant had the average capacity to see and hear; that he did not stop in approaching the track; that

he looked to the south and listened as he passed over the west line of the street intersection; that the car, in approaching, made the usual noise; that there was a row of trees, next to the curb line on the west side of Washington street, that it inferentially appears also obstructed the view to the south, until a person in a carriage, coming from the west on Jefferson street, reached said curb line of Washington street; that said curb line was 15% feet west of the west rail of appellee's track; that appellant saw or heard the car an instant before the collision; that his attention was attracted thereto about the same time that his horse gave a sudden lunge; and that at that time the fore feet of the horse were upon the track. Interrogatory No. 47 is as follows: "Could plaintiff, if he had looked, have seen the car approaching, with an electric headlight, at any time after passing the west line of Washington street until he reached the track?" The jury answered, "No." This answer, it must be admitted, seems to contradict the general trend of the interrogatories; but, as shown above, where the answers to interrogatories war with each other, they simply worked destruction among themselves and do not impair the general verdict.

There are other uncertainties, if not contradictions, in the answers to interrogatories, that we will not dwell upon. Moreover, there is, in some particulars, a very inadequate representation made by the special findings as to the conditions surrounding appellant immediately prior to the collision. This has been attempted to be covered by interrogatory No. 3, answered by the jury in the affirmative. That interrogatory reads as follows: "Was plaintiff at the time of such collision voluntarily attempting to drive across defendant's railway track at the intersection of said streets?" The finding mentioned does not warrant the conclusion that appellant voluntarily encountered the danger. See Stone Co. v. Summit, 152 Ind. 297, 302, 53 N. Ę. 235. For aught that appears, his horse may have become frightened, and he may have been compelled to guide it across the track as the seeming safest course, under such circumstances of sudden opposing dangers as did not afford the opportunity for any careful weighing of the probabilities attending the pursuit of either course. The answers to interrogatories did not affirmatively show that appellant was guilty of contributory negligence. The findings being silent relative to the truth of the averments as to the high and dangerous rate of speed at which said car approached the street intersection, it was the duty of the trial court to indulge the presumption, as it was not permitted to consider, for the purpose of the motion, the evidence actually introduced, that the averments as to speed were sustained by the evidence, and upon that hypothesis appellee stands clearly con

victed by the verdict of negligence. It was error to sustain appellee's motion for judgment in its favor upon the answers to interrogatories.

In apprehension of this conclusion, counsel for appellee have argued the question as to what ought to be the mandate of this court in the event of a reversal, and this has led counsel for appellant, in their reply brief, to argue the same question. By express provision of statute, this court is authorized, in reversing a judgment, to order a new trial, when the justice of the case requires it (section 672, Burns' Rev. St. 1901; section 660, Horner's Rev. St. 1901); and this court has often exercised such authority (Matchett V. Railway Co., 132 Ind. 334, 31 N. E. 792, and cases there cited; Mitchell v. Brawley, 140 Ind. 216, 39 N. E. 497, and cases cited in Stewart v. Patrick, 5 Ind. App. 50, 30 N. E. 814). It is our conclusion that this should be the result in this case.

The judgment is reversed, with an instruction to the trial court to grant appellee a new trial.

(29 Ind. App. 181)

SMITH.

BURNS v. (Appellate Court of Indiana, Division No. 2. May 27, 1902.)

INFANTS-AGENTS-POWER TO APPOINT-LIABILITY FOR TORTS-DIRECTION OF VERDICT -HARMLESS ERROR.

1. An infant, even though married, could not appoint an agent, or become liable for the latter's tortious acts.

2. Where the evidence entirely failed to make out a case for plaintiff, it was the duty of the court to direct a verdict against him.

3. Error in rejecting evidence for plaintiff, against whom verdict was directed, was harmless where the evidence rejected, taken with that admitted, did not entitle plaintiff to recov

er.

Appeal from circuit court, Morgan county; George W. Grubbs, Judge.

Action by Sherman Burns against Edith Smith. From a judgment for defendant, plaintiff appeals. Affirmed.

A. D. Rose and Oscar Matthews, for appellant. Renner & McNutt, for appellee.

WILEY, C. J. Appellant was plaintiff below and prosecuted this action to recover damages alleged to have resulted from the negligence of appellee. The facts upon which he based his action are stated in the complaint as follows: That appellee owned a tract of land in Morgan county, upon which there was growing timber; that she desired to have such timber cut into saw logs, and hauled to a mill; that appellant was employed by appellee to assist in cutting such logs and loading them on wagons; that while engaged in such service appellee's foreman and agent, one Edward Smith, who was in charge of said work, and who was acting for and in the place of appellee, ordered and directed appellant to assist in loading a log upon a wagon; that there were then five logs on said wagon, and

that said Smith wanted to put another log on the top of said five logs; that, pursuant to said direction, appellant, said Smith, and three other men in appellee's employment, took hold of the log, and rolled it upon skids, by hand, to near the top of the other logs on the wag. on, when the said foreman, seeing that the log could not be loaded in that way, the log getting out of reach before getting in place, and that while said log was on the skids above the heads of the men, negligently and carelessly gave the command, "Let her go to boys; we can't hold it;" that appellant was near the center of the log between the skids, with no means of escape except to let go and run from the wagon; that the log was so heavy that he could not hold it, and was compelled to let go and run; that in attempting to get out of the way he was run down and over by the log and injured. The appellee answered by general denial. The cause was tried by a jury, and upon the close of appellant's evidence the court, upon appellee's motion, directed a verdict for her. Appellant moved for a new trial upon the ground that the verdict was not sustained by sufficient evidence, and was contrary to law; that the court erred in excluding and in striking out certain evidence and in directing a verdict against appellant. The appellant has assigned as error the overruling of his motion for a new trial.

If appellee can be held liable under the facts charged in the complaint, it must be upon the theory disclosed by the pleading, and that is, that appellant was employed by appellee to assist other men in cutting timber and loading logs, and that it was actionable negligence, for which appellee is liable, for Smith, as agent and foreman of appellee, to say, while appellant and others were loading the log, "Let her go to boys; we can't hold it." The evidence discloses that at the time appellant was employed and when he was injured appellee was a married woman, and only 17 years old. Edward Smith, who was her husband, and alleged agent, was 24 years old. The evidence wholly fails to show that Edward Smith had any authority to act for appellee so far as controlling, employing, or directing the men engaged in cutting and loading the timber. The evidence shows that two men by the name of Johnson and Vest had the contract to cut the timber, and appellant was helping them at the request of appellee's husband. Appellee's husband had a team, and was hauling logs with it. Other persons with teams were also hauling. We gather from what is said in the briefs and what appears from the record that the court directed a verdict for appellee upon the ground that she, being an infant, could not appoint an agent, and thus render herself liable for his negligent or tortious acts. If appellee had not the power to appoint an agent, then she would not be liable for his acts. It has been frequently held that an infant can. not appoint an agent, and that such act is ab

solutely void. Trueblood v. Trueblood, 8 Ind. 195, 65 Am. Dec. 756; Tapley v. McGee, 6 Ind. 56; Fetrow v. Wiseman, 40 Ind. 148 (155); 1 Am. & Eng. Enc. Law (2d Ed.) 940. The rule holding that an infant cannot appoint an agent, and that such an appointment is absolutely void, rests upon the proposition that an infant cannot enter into a binding contract. The relation of principal and agent implies a contract, whereby the former delegates power to the latter to act for him or her, within specified limits, and in this sense it is a contract of agency. The marriage of an infant with the consent of the father is an emancipation only to the extent as to enable him to make contracts for his own services, and to apply his wages to the support of his family. Otherwise it does not enlarge his power to contract, nor does it remove the disability of infancy, so that he is bound by his contracts, except for actual necessaries. Wood, Mast. & Serv. §§ 29, 32. See, also, Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409; Craig v. Van Bebber (Mo.) 18 Am. St. Rep. 638, note (s. c. 13 S. W. 906). Cooley, Torts (2d Ed.) p. 128, says: "As the doctrine respondeat superior rests upon the relation of master and servant, which depends upon contract, actual or implied, it is obvious it can have no application in the case of an infant employer, and he therefore is not responsible for torts of negligence by those in his service." See Robbins v. Mount, 4 Rob. (N. Y.) 553, 33 How. Prac. 34. The only tortious acts for which an infant can be made responsible are those committed by himself, or under his immediate inspection and express direction, and he cannot otherwise be made liable for the wrong of those assuming to act for him. In law an infant cannot become a master, or be responsible as a master for the negligence or want of skill of his agent or servant. As he cannot create an agency, he cannot appoint a servant, and therefore cannot delegate powers to another. See Robbins v. Mount, supra; 16 Am. & Eng. Enc. Law (2d Ed.) p. 308; Cooley, Torts (2d Ed.) p. 128. The evidence, as disclosed by the record, under the authorities cited, wholly fails to make a case for appellant. In such case it was the duty of the court to direct a verdict. Meyer v. Insurance Co., 144 Ind. 439, 43 N. E. 448; Russell v. Earl, 10 Ind. App. 513, 38 N. E. 76; Elliott, Gen. Prac. § 854.

Appellant offered to prove that appellee's husband came to him and said that his wife wanted some logs cut on her place, and got him (appellant) to assist in cutting them. Over appellee's objection, the court refused to let him so testify. Appellee testified that she directed her husband to have the logs cut and hauled to the mill; that she had him see to the work, and that he did the work under her direction. Upon motion this evidence was stricken out. The refusal to admit the above offered evidence of appellant and in striking out the evidence of appellee, to which we have referred, is made the third and

fourth reasons for a new trial. As this evidence went to the question of appellee's husband being her agent, it could not have affected the substantial rights of appellant, for the simple reason that appellee was incapacitated from appointing an agent by reason of her infancy. If it be conceded that the evidence was competent, the ruling upon striking it out and in refusing to admit it was harmless, for under the whole evidence, including that which was refused and stricken out, appellant was not entitled to recover. Sutherland v. Railroad Co., 148 Ind. 308, 47 N. E. 624; 2 Burns' Index Dig. p. 613, § 8, and authorities cited thereunder. Judgment affirmed.

(29 Ind. App. 216)

KNAUSS v. LAKE ERIE & W. R. CO. (Appellate Court of Indiana, Division No. 1. May 27, 1902.) CARRIERS-INJURIES ΤΟ PASSENGERS-CONTRIBUTORY NEGLIGENCE-PLEADING.

1. A carrier must exercise the highest degree of care in the management of its trains for the safety of its passengers, and is liable for any injury resulting from its negligence, unless the passenger is guilty of contributory negligence.

2. Where a complaint states a cause of action, but also states facts constituting a defense, it is demurrable.

3. A passenger, though a boy only 10 years of age, sustaining injuries resulting in his death by protruding his head out of the car window and coming in contact with a car standing on a side track, alleged to have been negligently placed too near the track, is chargeable with contributory negligence, precluding a recovery against the carrier.

Appeal from circuit court, Clinton county; J. V. Kent, Judge.

Action by John E. Knauss against the Lake Erie & Western Railroad Company. There was a judgment in favor of defendant, and plaintiff appeals. Affirmed.

Brumbaugh & Combs, for appellant. John B. Cockrum and Guenther & Clark, for appellee.

HENLEY, P. J. This was an action for damages growing out of the death of the appellant's infant son by the alleged wrongful act of appellee. The material averments of the complaint pertinent to the question herein involved are as follows: That appellee was on the 30th day of September, 1899, a carrier of passengers for hire, and run and operated the Lake Erie & Western Railroad; that on said day the appellee, in consideration of a railroad ticket having been purchased from it by the appellant, and the railroad fare in the sum of dollars having been first paid by the appellant, for himself, his wife, daughter, and said infant son, undertook to safely transport and carry the appellant's said son as a passenger. in company with appellant and his family, upon one of its regular passenger trains over and upon its railroad, westward bound, on his way home through the state of Indiana, and the coun

ties of Tipton and Clinton, to the city of Frankfort, Ind.; that the appellant's said son took passage upon, and was riding as a passenger in, one of the appellee's regular passenger cars, forming and composing a part of one of appellee's regular passenger trains, on his way westward to the city of Frankfort, Ind.; that at a point on said railroad about 11⁄2 miles west of the city of Tipton, Ind., the appellee, prior to and on said day, owned, had, and operated a number of switch tracks connected with the main line of said railroad at a point and extending and diverging from said point to the northeast; that prior to and on said date the appellee had carelessly and negligently placed, and caused and permitted to remain standing, upon one of said switch tracks, a number of railroad cars, near the point where said switch tracks connected with said main line, and at a point so near the twitch track next to and located immediately south of the switch track upon which said cars had been placed and were then standing, that a passenger car or a train of passenger cars could not be run along or pass along the switch track next south of said standing cars without striking against and colliding with said standing cars; that upon such day, as the passenger train upon which appellant's son was riding arrived at the point of the railroad where the switch tracks were located, the appellee knowingly, negligently, and carelessly run and backed said passenger train upon which appellant's son was riding as a passenger, in and upon the switch track next to and immediately south of the standing cars, thereby running the passenger train against the standing cars, and causing a collision between the passenger train and the standing cars; that the collision caused a loud and unusual noise, jarred and jostled the passenger cars upon which the appellant's son, in company with the appellant's family, was riding as a passenger, and thereby greatly excited, disturbed, and frightened him, and caused fright and commotion and excitement among the passengers in the passenger car, including appellant's son; that appellant's son was of young and tender years, to wit, 10 years of age; that he had no experience in traveling upon a railroad train, and was entirely unacquainted therewith; that he was ignorant of the fact that the cars were standing on the switch track, and that the appellee was backing the passenger train in upon the switch track next to said standing cars; that he was ignorant of any danger incident to putting his head out of the car window of the car upon which he was riding; that the appellant's son was greatly excited, disturbed, and frightened by the collision, and the unusual and frightful noises made thereby, and the commotion, disturbance, and excitement of his fellow passengers, and the jarring and jostling of the car upon which he was riding; that while he was in this disturbed, excited, and frightened condition, and acting under the sudden

impulse of fear and excitement, and the apprehension of danger, he undertook to and did put his head out of the passenger car window next to him; that as he did so a corner or projection or other portion of said standing cars, to the plaintiff unknown, struck and caught the top of his head in the window, and pressed and crushed it against the side of the passenger car window through which he had protruded his head, and then and thereby and by reason of said carelessness and negligence of the appellee he was instantly killed. The remaining allegations of the complaint are only as to the relationship existing between the appellant and the person killed, and averments as to the damage sustained. The trial court sustained appellee's demurrer to the complaint, and the correctness of this ruling is the only question presented by this appeal.

The trial court properly sustained appellee's demurrer to the complaint. To actions of this character contributory negligence is made a defense by statute in this state. Acts 1899, p. 58. It is settled law, and applicable to the facts averred in appellant's complaint, that a railway company, acting as a carrier of passengers for hire, must exercise the highest degree of care in all things pertaining to the conduct and management of its trains, with a view to the safety of its passengers. The railway company will be held liable for any injury to a passenger resulting from its negligence or carelessness, unless such passenger be guilty of contributory negligence. Railway Co. v. Snyder, 117 Ind. 435, 20 N. E. 284, 3 L. R. A. 434, 10 Am. St. Rep. 60; Railway Co. v. Spyzchalski, 17 Ind. App. 7, 46 N. E. 47; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N. E. 973, 7 L. R. A. C87, 18 Am. St. Rep. 330; Railway Co. v. Lucas, 119 Ind. 583, 21 N. E. 968, 6 L. R. A. 193; Prothero v. Railway Co., 134 Ind. 431, 33 N. E. 765. It has been often held that where a complaint states facts constituting a cause of action, but also states facts which constitute a defense, it will be held bad on demurrer. Behrley v. Behrley, 93 Ind. 255; Kammerling v. Grover, 9 Ind. App. 632, 36 N. E. 922; Sutton v. Todd, 24 Ind. App. 519, 55 N. E. 980; Calvo v. Davies, 73 N. Y. 211, 29 Am. Rep. 130; Bowlus v. Insurance Co., 133 Ind. 110, 32 N. E. 319, 20 L. R. A. 400. It necessarily follows that, if the complaint shows that the decedent was guilty of negligence which contributed to his injury, it must be held not to state a cause of action. It seems to have been universally held by the courts in this country that, if a passenger on a railway train protrude any part of his body through a window of the car, it is negligence per se. The case of Railroad Co. v. Rutherford, 29 Ind. 82, 92 Am. Dec. 336, early established this doctrine in Indiana. It was there said: "Nothing is better settled than in such a case, if the plaintiff's negligence has directly contributed to the injury, he cannot recover. A passenger is as much bound