Ramsey et al. v. The Rushville and Milroy Gravel Road Company. the defendant in permitting said road to become and remain obstructed as aforesaid." It was claimed by the appellee, that the appellants contributed by their own negligence to the injuries complained of. There was evidence introduced on the trial which tended to show contributory negligence on the part of the appellants, but, on this point, the evidence was conflicting. The court of its own motion instructed the jury upon this point, in substance, that if they should find from the evidence that the conduct of the appellants, or of either of them, contributed to the accident, they must find for the appellee; and the question as to whether the appellants, or either of them, were or were not guilty of contributory negligence, the court left to the jury as a question of fact. In The Louisville, etc., R. W. Co. v. Richardson, 66 Ind. 43, this court approved of the following instruction, which had been given the jury by the trial court, upon the point now under consideration: "Also, I leave it to you as a question of fact, whether there was negligence in the plaintiff, that invited or contributed to the injury complained of." See, also, Gagg v. Vetter, 41 Ind. 228. In the case at bar, we are of the opinion, that the court did not err in leaving to the jury the question as to whether the negligence of the appellants, or of either of them, did or did not contribute to the injuries of Ann M. Ramsey, as a question of fact. It is claimed by the appellants, that the court erred in excluding from the jury the testimony of two witnesses, produced by them. By each of these witnesses the appellants offered to prove, that, within a few days of the day on which the appellants' buggy was overturned, he, the witness, was driving a sleigh over the appellee's road, and that, in attempting to pass the same obstruction in the road mentioned in the complaint, by driving around it, and while driving in a careful manner, his sleigh was overturned at or near the same place where the appellants' buggy was overturned. This offered evidence was outside of and foreign to the issues in this cause, and, as it seems to us, was clearly incompetent. The appellee's Ramsey et al. v. The Rushville and Milroy Gravel Road Company. objection to the evidence, on this ground, was well taken and correctly sustained, and the evidence was properly excluded. At the request of the appellee, the court gave the jury trying the cause, the following instruction: "1st. If by the action of the elements (snow and wind), and without any fault of the corporation, its officers or agents, a snow bank was formed on the line of the defendant's road three or four feet in depth and forty rods long, and the plaintiff, while travelling upon said road, came to it and undertook to pass over it and through it, and sustained injuries in so doing, then the corporation would be liable, provided it was shown to be an obstruction, and the company had knowledge of it, or it had remained a sufficient length of time to imply a knowledge of it; but if the evidence shows that when the plaintiffs came to it, they did not attempt to pass over it or through it, but of their own choice attempted to drive around it, and in so doing drove upon a piece of ground so sideling as would appear to a prudent man dangerous, and thus upset their buggy, thereby sustaining the injuries complained of, the plaintiffs could not recover." The appellants' counsel earnestly insist that the concluding sentence of this instruction is not the law, and is in direct conflict with the authorities. In support of their position on this point, counsel have referred us to Wharton on Negligence, section 997; but an examination of that section will show very clearly, we think, that it treats of a subject-matter so widely different from the one presented in the case now before us, that it can not be regarded as an authority in point. In section 968, of Wharton on Negligence, it is impliedly declared, that if the travelled portion of the highway is obstructed or dangerous, making it necessary for a traveller to deviate therefrom, he must, in so doing, use ordinary care, for, if in so deviating he does not use such care, the road corporation will not be liable for injuries sustained by reason of such obstruction. Ordinary care would prevent a traveller, in deviating from a highway to avoid an obstruction therein, from driving Ex Parte Mitchell. upon a piece of ground so sideling as would appear dangerous to a prudent man. This is substantially what the court told the jury, in the concluding sentence of the instruction quoted, and it seems to be the law. The verdict of the jury was fairly sustained by the evidence, on every material point, and it was not contrary to law. Upon the whole case, our conclusion is that the court committed no error in overruling the appellants' motion for a new trial. The judgment is affirmed, at the appellants' costs. No. 9211. EX PARTE MITCHELL. SUPREME COURT.-Record.-Allowance to Clerk.-Where a county clerk presents a claim for special services for a term of court, but offers no evidence in support thereof, and no finding is made that the services were rendered, and the court refuses to allow the claim, no question is presented by the record to the Supreme Court, on appeal. From the Floyd Circuit Court. J. H. Stotsenburg, for appellant. BEST, C.-At the September term, 1880, of the Floyd Circuit Court, the following bill of expenses was submitted to the judge of said court for allowance: Floyd county, to John B. Mitchell, Clerk, Dr. "Clerk's bill of expenses for the September term of the Floyd Circuit Court: "1. To making up dockets, 291 cases @ 60c. $174.60 15.00 25.00 Ex Parte Mitchell. "4. To reports wherein inventories are due in estates 20.00 "5. To issuing grand jury subpoenas (100@8c) "6. To issuing venire for grand and petit jurors. "8. To recording indictments (26@50c) "9. To entering and certifying to auditor grand jury reports on jail. . 8.00 . 1.00 4.50 13.00 2.00 "10. To entering court allowances (4@50c) . 2.00 14.00 "12. To services rendered in State cases lost by State 100.00 The court, after an examination of the claim, allowed the 5th, 14th, and $1 of the 11th item, and refused to allow the residue, to which refusal the appellant excepted. From this order this appeal is taken, and the error assigned is the refusal of the court to allow and order paid the residue of appellant's claim. No evidence was offered in support of appellant's claim, and no finding was made that appellant had rendered the services or expended the money mentioned in his statement. In this condition of the record, no question is presented. In the absence of a showing or a finding, the questions sought to be raised are mere abstract questions. For these reasons, the order made by the court should be affirmed. PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things affirmed, at the appellant's costs. Chrisman et al. v. Chenoweth. No. 9235. CHRISMAN ET AL. v. CHENOWETH. PLEADING.-Mortgage.-Parties.—A complaint by A., in the usual form, to foreclose a mortgage given to A. and B. to secure a note payable to A., is not bad for want of sufficient facts. If objectionable at all, it is for want of proper parties. SAME.—Answer.—Reply.-A paragraph of reply to two paragraphs of answer, which avers nothing in denial or avoidance of one of them, is bad on demurrer. SAME.-Vendor and Purchaser.—Title Bond.—Breach of Warranty.—Eviction. Promissory Note.-Consideration.—To a complaint to foreclose a mortgage the answer was in two paragraphs: 1. That the note was for the last instalment of the purchase-money of the land mortgaged; that the vendor contracted by bond to execute a warranty deed upon full payment of the purchase-money, which had not been tendered; and by paramount title the purchaser had been evicted of one-third of the land. 2. As to onethird of the note, that the consideration has failed because of the eviction of the purchaser from a third of the land by title paramount; that a deed for the vendor's "right, title and interest" in the land was tendered, which the purchaser was persuaded to accept, but not in full discharge of the bond. A reply to both, denying under oath the execution of the bond, and that the deed was executed and accepted and recorded by the purchaser, who has ever since claimed under it, is good on demurrer. From the Warren Circuit Court. J. McCabe and C. M. McCabe, for appellants. J. M. Rabb, for appellee. BICKNELL, C. C.—This was a suit upon a note and mortgage, given to secure the payment of the purchase-money of land. The appellee, the payee of the note, was the plaintiff; of the defendants, Isaac Chrisman was the maker of the note; he and his wife were the mortgagors; Swisher and wife were purchasers subject to the mortgage, and the other defendants were junior judgment creditors. There was a trial by the court and a finding for the plaintiff for the amount of the note and interest, and for foreclosure of the mortgage. The defendants Isaac Chrisman and VOL. 81.-26 |