Conner v. The Citizens Street Railway Company.

"A special verdict is that by which the jury find the facts only, leaving judgment thereon to the court." Section 545, R. S. 1881.

When, upon an issue involving negligence, the principal or ultimate facts are determined by the jury, it then becomes the function of the court to decide, as a question of law upon the facts found, whether or not the party to whom negligence is imputed was negligent.

A civil case can not be conceived of in which it is the province of the jury by special verdict to determine the facts, and also to draw inferences in the nature of legal conclusions upon the facts found. When the jury find and return a special verdict, it must then be considered that the facts in that case are no longer in dispute. They are ascertained and settled by the special verdict. Unless it can be maintained that the inference or conclusion which may be drawn from all the ascertained and undisputed facts is also a fact, it must follow that it is not the province of the jury to draw inferences or state conclusions. It is settled by decisions so numerous that we need not cite the cases, that where the facts are undisputed it is the province of the court to settle the question of negligence as a question of law. This must be so in the nature of things. If it is otherwise, there is a class of cases in which upon the undisputed facts the court is incapable of reaching a conclusion, or of determining whether such facts constitute negligence or not. As in cases where the question is whether, upon an ascertained state of facts, the conclusion of fraud, conversion of goods, payment or probable cause for the institution of a suit may be drawn, so, where the question is whether negligence has intervened when the facts are ascertained by the instrumentality selected for that purpose, the court must determine. whether, in law, negligence can be predicated upon the facts ascertained. Louisville, etc., R. W. Co. v. Balch, post, p. 93. Concede that in some sense negligence is, as it is someVOL. 105.-5

Conner v. The Citizens Street Railway Company.

times said to be, a mixed question of law and fact, it can not

be so after the facts are ascertained. In cases involving negligence, as in all other civil cases, a point must be reached at some time when the facts and the law are to be considered as separate and distinct, when the litigants have the right to invoke the judgment of the court, and require it to determine whether, upon the facts as they are agreed to be, the law declares that negligence intervened. Such a point, we think, is arrived at when the jury have agreed upon and returned to the court in a special verdict the principal, contested facts in issue.

Without entering farther upon ground which has often before been debated over, we are not willing to admit that a case can arise in which the court must stand mute in the presence of undisputed facts, without authority to declare

the law.

Eliminating the unauthorized conclusions drawn by the jury, we proceed to the consideration of the facts properly returned in the special verdict. Upon the facts so returned, we think it clearly appears that the defendant was guilty of negligence, and that the plaintiff was without contributory fault.

While the plaintiff stood upon the crossing at the usual place where passengers were taken up, one car passed rapidly, without slackening its speed. Seeing the next approach at a rapid trot, he gave notice to the person in charge that he desired to be taken up. The speed of the car was slackened so that when the rear end came opposite the crossing it was moving slowly. It can not be assumed that the plaintiff had information that the approaching car, one of the regular vehicles on the line, was not to take passengers. Being at the usual place where passengers were taken up, and having given notice to the person in charge of the car that he desired to be taken up, it was the plain duty of the driver, or person in charge, either to afford him reasonable opportunity to enter the car, or to notify the plaintiff, either by continuing the rapid pace, or in some other way, that he would not be taken.

Conner v. The Citizens Street Railway Company.

Instead of giving any sign that he would not be taken, the speed of the car was slackened, so that it was moving slowly when he attempted to get on. Having received a signal and slowed up in a manner to invite the plaintiff to get on, it was a clear act of negligence in the driver, or person in charge, not to observe the plaintiff, if he did not observe him, and, while he was getting on the car in a manner in which the defendant usually received such passengers, to cause the car to be "jerked" forward, as the jury found.

Having given notice of his desire to be taken on board the car, and its speed having been slackened so that it was apparently safe under ordinary circumstances, it was not negligence in the plaintiff to attempt to get on while the car was so in motion. He had a right to rely upon the watchfulness and care which it was the duty of the driver to bestow toward persons about to take passage, under the circumstances, and was not bound to anticipate that the car which he was getting upon might be "jerked," forward by an act of the driver, so as to put him in danger. Chicago City R. W. Co. v. Mum

ford, 97 Ill. 560.

The rules applicable to persons getting on and off cars operated by steam are not to be applied in all their rigor to street railways operated by horse-power. A person having the free use of his faculties and limbs, and having given proper notice of his desire to be taken up, the car having slackened up in the usual manner, it is not negligence for him to attempt to get on while it is moving slowly. Murphy v. Union R. W. Co., 118 Mass. 228; Wyatt v. Citizens R. W. Co., 55 Mo. 485; Thomp. Carriers, 443, 444.

The judgment of the general term is reversed, with costs. Filed Jan. 26, 1886; petition for a rehearing overruled April 14, 1886.

Beard. Puett et al.

No. 12,083.

BEARD v. PUETT ET AL.

JUDGMENT.-Set-Off.-Equity.-It is only when equity and good conscience require it that a court can order one judgment to be set off against another.

SAME.-Husband and Wife.-Assignment of Judgment to Wife to Reimburse Her for Money Advanced to Prosecute Action.-Where a husband assigns a judg ment to his wife to reimburse her for money advanced to him to aid in the prosecution of the action in which it was obtained, the judgment defendant can not, in an action subsequently brought for that purpose, offset judgments held by him against the husband against the judgment so held by the wife.

From the Montgomery Circuit Court.

T. E. Ballard, M. E. Clodfelter and A. D. Thomas, for арpellant.

V. Carter, G. W. Paul and J. E. Humphries, for appellees.

NIBLACK, C. J.-On the 27th day of May, 1881, Jacob Beard recovered a judgment, in the Montgomery Circuit Court, in an action for an assault and battery against Elisha A. Puett, Samuel D. Puett and Johnson R. Darroch, for the sum of $500 and costs of suit since taxed at $239.35. At the time of the rendition of that judgment the judgment defendants were the owners and holders, by assignment, of certain judgments, theretofore rendered against Beard, which, in the aggregate, amounted to more than the judgment in favor of the latter against them. Immediately after the entry of the judgment first above referred to, Thomas, Shelton and Courtney, Beard's attorneys, filed liens against it for the fees respectively claimed by them for obtaining the judgment. On the same day, that is, on the day the judgment was rendered, Puett and others, the judgment defendants in that judgment, filed the complaint upon which this action has been prosecuted against Beard, demanding that the judgments held by them by assignment, as above set forth, be set off against his judgment so obtained against them. "Thomas, Shelton and Courtney were also made defendants to

Beard v. Puett et al.

answer as to their interests in Beard's judgment. On the 8th day of June, then immediately ensuing, Beard assigned his judgment to Olivia Beard and she was soon afterwards, on her own application, made a party defendant to this proceeding. She thereupon resisted the proposed set-off of judgments upon the ground that she had supplied her codefendant, Jacob Beard, with the means necessary to prosecute his action for damages, with the agreement and understanding that the judgment when obtained was to belong and to be assigned to her. Upon a hearing the circuit court declined to grant the relief demanded and rendered judgment accordingly. So much of that judgment as was operative in favor of Olivia Beard was reversed by this court. See Puett v. Beard, 86 Ind. 172 (44 Am. R. 280).

After the cause was remanded, Mrs. Beard amended her answer by averring that at the time she furnished Jacob Beard the means to prosecute his action, she was, and had ever since continued to be, his wife. At the ensuing, or last, trial, the circuit court made a special finding of the facts, which, amongst other things, found that at the time Jacob. Beard commenced his action against the plaintiffs herein he was destitute of means to prosecute it effectively, and was then, as he had ever since continued to be, wholly insolvent. and destitute of means; that Mrs. Beard advanced to, and furnished, him about the sum of $200 to enable him to prosecute his action to a successful termination, being at the time, as she still continued to be, his wife, and being in that way interested in his estate; that the plaintiffs herein had, in the meantime, paid and discharged the liens held upon the judgment against them by Thomas, Shelton and Courtney respectively, but there was no finding as to whether there were any terms or conditions, as to the ultimate ownership of the judgment which might be obtained, connected with Mrs. Beard's advances to her husband to enable him to prosecute his action against the plaintiffs as averred in her answer. Neither was there any finding as to when process was issued