in cases of death or injuries to persons occasioned by negligence. Appellant's counsel submits a learned argument upon the proposition that said act is unconstitutional, but, in view of the recent decisions of this court to the contrary, we do not feel called upon to discuss the question. See Railway Co. v. Robinson (at this term) 61 N. E. 197; Railway Co. v. Peyton, Id. 722. This statute cannot be held to abate the legal requirements as to the care that a traveler crossing a railroad track must use, and it does not change the rule that it is presumed that the traveler saw and heard, or was heedless of, that which, as an ordinarily prudent man, he ought to have taken notice of; but it is evident that in many cases, where the question as to contributory negligence stands as a mixed question of law and fact, the statute may have an important bearing upon the legal aspect of such cases. As applied to this case, it is evident that the statute is a very considerable factor. As stated before, there is evidence that the buggy was stopped, and it may be inferred that the son looked and listened when he and his father were from 70 to 75 feet from the crossing, and 25 feet from the track. They drove on, and, after the time that the witness Smith ceased to hear the buggy rattling as it went east, the line of continuity is broken until the men are found dead upon the railroad right of way. 150 Ind. 576, 50 N. E. 576, 65 Am. St. Rep. 377. Exceptional circumstances may also require him to stop, although this proposition generally presents itself as a mixed question of law and fact. 3 Elliott, R. R. § 1167; Railway Co. v. Howard, supra; Railway Co. v. Stommel, supra; Railroad Co. v. Thomas, 155 Ind. 634, 58 N. E. 1040. As a corollary of the proposition that the traveler must look and listen, it follows that "the law will assume that such person actually saw what he could have seen if he had looked, and heard what he could have heard if he had listened." Railway Co. v. Fraze, supra. The traveler is also required to exercise ordinary care to select a place to look and listen where the acts of looking and listening will be reasonably effective. 3 Elliott, R. R. § 1166. It is not ordinarily possible, however, to affirm, as a matter of law, the precise number of feet from the crossing at which the traveler must look and listen; the underlying test being, did the traveler exercise or. dinary care, in view of the danger, in selecting the place? Railway Co. v. Harrington, 131 Ind. 426, 30 N. E. 37; Railroad Co. v. Thomas, supra. A further proposition, based on the reciprocal rights of the railway company and a traveler at a public crossing, is that after a traveler has vigilantly used his senses to avoid danger, as stated above, and is unable to see or hear any approaching train, he may, while still exercising due care, assume that the company will not omit to give the usual, and especially the statutory, signals, if a train is really approaching. 3 Elliott, R. R. § 1158; Railway Co. v. Martin, 82 Ind. 476; Railroad Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761; Railroad Co. v. Brunker, 128 Ind. 542, 26 N. E. 178; Railroad Co. v. Burton, 139 Ind. 357, 37 N. E. 150, 38 N. E. 594; Railway Co. v. Conoyer, 149 Ind. 524, 48 N. E. 352, 49 N. E. 452. The omission to give signals may therefore be an element in determining the question of contributory negligence. Where the facts and circumstances surrounding a particular case are such as to warrant different inferences, so that an impartial, sensible man may draw the inference and conclusion that the injured person was guilty of contributory negligence, while another man, equally sensible and impartial, might draw a different conclusion, such question is one that, under appropriate instructions as to the law, should be submitted to a jury. Railroad Co. v. Walborn, 127 Ind. 142, 26 N. E. 207; Mann v. Stock Yard Co., 128 Ind. 138, 26 N. E. 819; Railway Co. v. Harrington, supra; Young v. Railroad Co., 148 Ind. 54, 44 N. E. 927, 47 N. E. 142; Railroad Co. v. Williams, 20 Ind. App. 576, 51 N. E. 128. One more proposition of law remains to be considered in applying the law to the question in hand, and that is the effect of the act of February 17, 1899 (section 359à, Burns' Rev. St. 1901; section 284a, Horner's Rev. St. 1901), relative to the burden of proof as to contributory negligence | approach to the crossing, occasioning a few Can there be a recovery by the appellee in this case, under the rules of law above stated? We are of the opinion that the evidence warranted such a result, in view of the burden of proof being upon the appellant on the question of contributory negligence. These men were compelled to drive almost in the same direction that the train was going, and for a number of feet they were compelled to drive in very close proximity to the track. Their buggy cover was up, it was dark and foggy, and their buggy rattled. It is not difficult to understand how they might have stopped and looked and listened at a proper distance, and, placing some degree of reliance upon the fact that they did not see a headlight, and did not hear the whistle sounded between 80 and 100 rods from the crossing, and did not hear the bell rung, as it is required to be, from the time the whistle should have been sounded until the crossing was reached, that they might have, while exercising due vigilance, been deceived by the negligent omission of the company, and been overtaken upon the crossing by this train, that, if it was running at the rate of 65 miles per hour, was running 95% feet per second, or a quarter of a mile in less than 14 seconds. We have not failed to consider the fact that we judicially know that trains create no inconsiderable noise in their movement, and that it is evident that for some considerable distance such noise can be heard; but in view of the character of the seconds' delay, when decedent and his son | simple method of reserving exceptions to could not well stop and listen, or readily turn back, and in view of the swift approach of the train, with the direction of the wind unfavorable for hearing, we have concluded that the question whether the decedent ought to have heard the approach of the train in time to have avoided the collision was a question that was properly submitted to the jury. We do not feel justified in discussing at length whether the evidence sustained the complaint in its general scope and theory, If construed according to the rule laid down in Railroad Co. v. McCorkle, 140 Ind. 613, 40 N. E. 62. There is a marked distinction between the complaint in that case and in this. In our judgment, there is evidence sufficient to support the verdict. Counsel for appellant urge that the trial court erred in giving each of a number of instructions. It is the claim of opposite counsel that the exceptions to the instructions are not in the record. The method pursued by the appellant in his effort to reserve such exceptions was to have the trial judge indorse upon the margin of each instruction the words: "Given and excepted to at the time by the defendant. James M. Leathers, Judge." The statute upon the reserving of exceptions to the giving or refusal of instructions without a bill of exceptions is as follows: "A party excepting to the giving of instructions or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to write on the margin or at the close of each instruction 'Refused and excepted to' or 'Given and excepted to' which memorandum shall be signed by the judge and dated." Section 544, Burns' Rev. St. 1901 (section 535, Horner's Rev. St. 1901). In Behymer v. State, 95 Ind. 140, 142, it was said of this section of the Code: "Under this section, the date is quite as material as the signature of the judge-First, because they are both required by the statute; and, second, because it is the date that shows when the exception was taken. It takes the place of the statement in the bill of exceptions that the exception was taken at the time." In Roose v. Roose, 145 Ind. 162, 164, 44 N. E. 1, it was said: "The instructions given by the court are all open to the same objection. The only statement to show that exceptions were taken to the latter is the following at the close thereof: "To the giving of each of the above instructions severally, plaintiff at the time duly excepted.' This was not in compliance with the requirements of the section of the Code to which we have referred, so as to be available to the complaining party. The exception must be noted either on the margin or at the close of each instruction, which written notation must be dated and signed by the trial judge. This the statute requires in plain, imperative terms, not open to construction." The statute has provided a most instructions given or refused, but the requirement of the statute that the marginal notation of the judge shall be dated is not open to construction. We have no disposition to be unduly technical, but we believe that this statute should be preserved in its simplicity, and that, when once we recognize that there is some equivalent method of reserving exceptions under this section of the Code, we will find a multitude of border-line questions springing up that will unsettle a matter of practice that is now so plain that the practitioner need not err therein. We have now considered the various questions presented by the record in this cause, and we find no error. Judgment affirmed. (28 Ind. App. 516) ATLANTA NATURAL GAS, OIL & MINING CO. v. BOYER. (Appellate Court of Indiana, Division No. 1. March 18, 1902.) APPEAL CONSTITUTIONAL QUESTION - RES JUDICATA-TRANSFER TO SUPREME COURT. An appeal in an action for personal injuries will not be transferred to the supreme court for the purpose of passing on the constitutionality of Acts 1899, pp. 58, 59, providing that the complaint in such actions need not aver absence of contributory negligence, that question having been passed on by the supreme court. Appeal from circuit court, Tipton county; W. W. Mount, Judge. Action by Clara Boyer against the Atlanta Natural Gas, Oil & Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed. Blacklidge, Shirley & Wolf and Beauchamp & Proctor, for appellant. Gifford & Gifford, Dan Waugh, and J. R. Coleman, for appellee. HENLEY, J. This was an action for damages arising from personal injuries received by appellee, caused by the alleged negligence of appellant. Appellee's complaint was in three paragraphs. In each of the first and second paragraphs of the complaint it is clearly alleged that appellant negligently failed to maintain its pipe line, and negligently permitted it to become out of repair, so that gas escaped therefrom, and entered through a tile ditch in the cellar of the house where appellee lived, and appellee, upon entering the cellar where a lighted lamp had been placed, was injured by the explosion which occurred just as appellee opened the door and entered the cellar. In neither of these paragraphs is it averred that appelles was free from contributory fault. In the third paragraph of the complaint appellant's negligence and appellee's freedom from contributory fault are both expressly averred. It is not necessary, in an action of this character, to aver and prove, as part of the cause of action, freedom from contributory fault. Our legislature by an act entitled "An act concerning pleadings and proof in actions for damages," etc. (Acts 1899, pp. 58, 59), made contributory negligence a defense to an action of this character, and it does not appear by the specific allegations of either paragraph of the complaint that appellant knew, or in the exercise of reasonable care might have known, of the existence of gas in the cellar at the time she entered it; in other words, the complaint does not show by its averments that appellee was guilty of negligence in entering the cellar or in any manner contributed to her injury. Counsel for appellant contend that the act under consideration (Acts 1899, pp. 58, 59) is unconstitutional. This question has been settled by the supreme court of this state in a recent decision (Railroad Co. v. Peyton [Ind. Sup.] 61 N. E. 722). The question, therefore, is not an open one, and for that reason the case is not transferred to the supreme court, for the purpose of passing upon the constitutionality of this law. Iron Co. v. O'Brien (Ind. App.) 62 N. E. 464. The record presents no error for which the judgment should be reversed. Judgment affirmed. (28 Ind. App. 536) TANNER et al. v. MISHAWAKA WOOLEN MFG. CO. et al. (Appellate Court of Indiana, Division No. 1. March 21, 1902.) CONDITIONAL SALE-REPLEVIN-CROSS COM PLAINT-ALLEGATIONS-SUFFICIENCY- 1. A sale of personal property, on condition that the title shall remain in the seller until the purchase price is paid, is valid, and the seller retains such ownership, though he parts with the possession. 2. A cross complaint by a defendant in replevin, which alleges ownership of the goods in the defendant under a bill of sale providing that title shall remain in him as seller until they are paid for, and further alleging that plaintiff wrongfully obtained possession of the goods and was wrongfully in possession at the commencement of the action, is not defective for failing to aver a demand for the goods. 3. The cross complaint is not defective on demurrer for failing to allege the county in which it is believed that the goods are detained. 4. Since Acts 1899. p. 384, § 6, providing a means by which evidence can be brought into the record on appeal, is invalid, evidence cannot be brought into the record by complying with its terms. Appeal from circuit court, Newton county; S. P. Thompson, Judge. Action by John W. Tanner and others against John De Jong and the Mishawaka Woolen Manufacturing Company. From a judgment for the Mishawaka Woolen Manufacturing Company on its cross complaint, plaintiffs appeal. Affirmed. Foltz, Spitler & Kurrie, for appellants. J. S. Saunderson and T. B. Cunningham, for appellees. HENLEY, J. The facts in this case are substantially as follows: Appellants were en gaged in the retail of general merchandise, as partners, in the village of Thayer, Newton county, Ind., and in November, 1898, sold their entire stock of goods to one John De Jong, who is named as one of the appellees herein. Appellants received part cash, and the residue of the purchase money was evidenced by notes secured by a chattel mortgage on the stock of goods. De Jong defaulted in the payment of the notes, and on the demand for the possession of the stock of goods under the chattel mortgage he refused to deliver the same to appellants, who thereupon filed their complaint in replevin in the Newton circuit court against him, and upon the trial of said cause appellants recovered judgment against said De Jong. Appellee Mishawaka Woolen Manufacturing Company, who was made a party defendant in the action brought by the appellants against De Jong, filed a cross complaint against appellants and said De Jong, and caused summons to issue accordingly, and tried the issue made by the cross complaint at the term of court succeeding the trial upon the original complaint. By the cross complaint, the Mishawaka Woolen Company, hereafter called the appellee, claimed to be the owner of a portion of the goods replevied by these appellants. Its cross complaint was in two paragraphs,-one in replevin, based upon a certain conditional bill of sale by which the title to the goods sold remained in the appellee until they were fully paid for, and the other paragraph was one alleging conversion of the goods claimed by the appellee. Upon a trial of the issue presented by the cross complaint and answer thereto, the trial court rendered judgment against John De Jong for the full amount of the claim, and against the appellants for $55, which was the value of the goods remaining unsold and which went into the hands of appellants by virtue of their action for replevin against said De Jong. The record in this case is in such a condition that only one of the specifications of the assignment of errors presented by appellants' counsel in their brief can be considered. The question which is properly presented and argued relates to the ruling of the trial court in overruling the demurrer of the appellants to the amended first paragraph of the cross complaint of the 'appellee. In the first place, it might not be out of place to state that it is well-settled law in this state that there may be a conditional sale of personal property whereby the vendor retains ownership until the agreed price is paid, although the vendor parts with possession of the property so sold. Steele v. Aspy, 128 Ind. 367, 27 N. E. 739; Machine Co. v. Arthurhultz, 63 Ind. 322; Manufacturing Co. v. Carman, 109 Ind. 31, 9 N. E. 707, 58 Am. Rep. 382; Hodson v. Warner. 60 Ind. 214. It is objected to the first paragraph of the cross complaint that no demand is averred, and that it is not stated in what county the property is believed to be detained. It has been held by the supreme court in this state that where, as in this case, possession of the property is not claimed before trial, proof need not be made of the detention of the property in the county where suit is brought (Robinson v. Shatzley, 75 Ind. 461), and that action may be commenced in any county where defendant resides (Hodson v. Warner, supra). It is also the law in this state that, where the possession of the goods was wrongfully acquired, no demand is necessary before the action for possession is commenced. Robinson v. Shatzley, supra, and cases cited. The cross complaint in this case averred that the appellants wrongfully obtained possession of the goods in question, and were wrongfully in possession of them at the time the action was commenced. We think the trial court correctly overruled the demurrer to the cross complaint. All of the questions arising upon the appellants' motion for a new trial require for their consideration the evidence which was adduced upon the trial. There is an attempt to bring evidence in the record under the act of 1899. Acts 1899, p. 384. Section 6 of this act, which attempts to provide a means by which the evidence can be brought into the record upon appeal, has been held by our supreme court to be invalid. Adams v. State, 156 Ind. 596, 59 N. E. 24. The evidence is not in the record. There is no error for which a reversal can be ordered. Judgment affirmed. (28 Ind. App. 699) ROUSH v. RUSSELL et al. (Appellate Court of Indiana, Division No. 1. March 20, 1902.) APPEAL VERDICT-CONCLUSIVENESS. A verdict on conflicting evidence will not be disturbed on appeal. Appeal from circuit court, Boone county. Action by Charles D. Russell and others against Milton Roush. There was a judg ment in favor of plaintiffs, and defendant appeals. Affirmed. Guthrie & Clark, for appellant. John W. Strawn, Owen & Brumbaugh, and Joseph Combs, for appellees. BLACK, J. The appellees brought their action to recover possession of land from appellant, their tenant holding over. The only question presented here relates to the sufficiency of the evidence to sustain the verdict for the appellees. Evidence introduced on behalf of the appellees fully supported the verdict, and the appellant can derive no benefit on appeal from his evidence of a contrary tendency. The conflict of evidence determined in the trial court cannot be opened up, and again decided here. Judgment affirmed. MENT-QUESTIONS RAISED-DETER MINED ON PRIOR APPEAL. 1. Under Burns' Rev. St. 1901, § 654, providing that upon the filing of an appeal bond "execution and all other proceedings on the judgment in the court below shall be stayed,” the filing of an appeal bond merely stays execution upon the judgment appealed from, without affecting the validity of the judgment in any respect; and hence an appeal bond is no bar to an action on the judgment, together with proceedings in garnishment. 2. Questions raised by special answers in an action on a judgment, which have been determined on the appeal from such judgment, will not be considered on the appeal from the order rendered in the action on such judgment, the questions being no longer in controversy. Appeal from circuit court, Lawrence county; Newton Crooke, Special Judge. Action by Joel L. Hobbs, administrator, against the Salem-Bedford Stone Company, as defendant, and the Perry, Mathews & Buskirk Stone Company and another, as garnishees. From a judgment for plaintiff against defendant and the garnishee the Perry, Mathews & Buskirk Company, the defendant and garnishee appeal. Affirmed. Dunn & Pearson, for appellants. J. E. Boruff and East & East, for appellee. COMSTOCK, C. J. The complaint alleges that Joel L. Hobbs, administrator, recovered a judgment in the Lawrence circuit court against the defendant, the Salem-Bedford Stone Company, for $3,800, setting out a copy of the judgment as an exhibit, and that it is unpaid. With the complaint appellee filed an affidavit and bond in attachment, and an affidavit in garnishment against the defendants Perry, Mathews & Buskirk Stone Company, and the Fidelity & Casualty Company of New York. The grounds of attachment are: (1) That the defendant the Salem-Bedford Stone Company is a foreign corporation; (2) said company has sold, conveyed, and otherwise disposed of its property subject to execution, with the fraudulent intent to hinder and defraud its creditors. The affidavit in garnishment alleges that the Perry, Mathews & Buskirk Stone Company and the Fidelity & Casualty Company are indebted to said Salem-Bedford Stone Company. Appellants moved to dismiss the attachment proceedings, and to quash the writ. The motion was overruled. They then filed a plea in abatement, setting up the appeal from the judgment sued on to the supreme court, and the filing of a proper and sufficient appeal bond, and alleging that said appeal is still pending. To this plea a demurrer for want of facts was sustained. The cause was finally put at issue by general denial and special answers, setting up the appeal from the judgment sued on and the filing of an appeal bond. The case was dismissed as to the Fidelity & Casualty Company. The court made a special finding of facts, stated conclusions of law, and rendered judgment against the Salem-Bedford Stone Company and the Perry, Mathews & Buskirk Stone Company, and judgment in the attachment proceedings in favor of appellee. The facts specially found show that appellee, on the 6th day of September, 1899, recovered a judgment against the SalemBedford Stone Company, for $3,812.08, for negligently killing James Hobbs, and that it was due and unpaid; that the Salem-Bedford Stone Company, on the 21st day of August, 1899, sold and conveyed to the appellant Perry, Mathews & Buskirk Stone Company all its real and personal property in Lawrence county, Ind., for the sum of $35,000, and that $11,666.66 was paid therefor in cash, and notes of equal amounts, due in 6 and 12 months from the date, were executed and secured by a mortgage to the SalemBedford Stone Company, and that there is a balance owing at the time of the trial from the Perry, Mathews & Buskirk Stone Company to its co-appellant of $11,666.66, with interest, due August 21, 1900, negotiable and payable to the American Trust & Savings Bank at Chicago, Ill.; that the appellant Perry, Mathews & Buskirk Stone Company paid to the Salem-Bedford Stone Company the first note due, with interest thereon, amounting to the sum of $12,000.48, after the bringing of this suit; the appellee filed with his complaint affidavits in attachment and garnishment; that the sheriff returned the writ of attachment finding no property in his bailiwick to attach, and that the appellant Salem-Bedford Stone Company, on the 21st day of August, 1899, disposed of all its property subject to execution within Lawrence county, Ind.. to appellant Perry, Mathews & Buskirk Stone Company; that at the time of the filing of this suit the Salem-Bedford Stone Company was not a resident of the state of Indiana, but was a resident of the state of Kentucky, and has so continued to be; that the summons of garnishment was issued for Perry, Mathews & Buskirk Stone Company and the Fidelity & Casualty Company of New York, requiring them to answer as garnishees, which summons was served on the day of its issue on the appellants. No claim was made that the special findings are not sustained by the evidence. Counsel for appellants contend that the court erred in sustaining the demurrer to the plea in abatement, for the reason that the statute (section 654, Burns' Rev. St. 1901) provides that, upon the filing of the appeal bond, execution, and all other proceedings on the judgment in the court below, shall be stayed; that under the above statute, after the filing of the appeal bond, upon the showing made, the action should have abated. It bas, however, been held in this state "that the only effect of an appeal to a court of error, when perfected, is to stay execution upon the judgment from which it is taken. In all other respects, the judgment, until overruled or reversed, stands binding upon the parties as to the question directly decided." Nill v. Comparet, 16 Ind. 107, 79 Am. Dec. 411; Burton v. Reeds, 20 Ind. 87; Burton v. Burton, 28 Ind. 312; Randles v. Randles, 67 Ind. 434; State v. Krug, 94 Ind. 366. The questions raised by the special answers have been disposed of by this court in Stone Co. v. Hobbs, decided the 19th day of November, 1901, since this appeal was taken, and reported in 61 N. E. 956. They are therefore no longer in controversy, and are not further to be considered. Elliott, App. Proc. § 148; Chicago Horseshoe Co. v. Lewis, 156 Ind. 232, 59 N. E. 466; State v. Board of Com'rs of Grant Co., 153 Ind. 302, 54 N. E. 809; Manlove v. State, 153 Ind. 80, 53 N. E. 385; Rowe v. Bateman, 153 Ind. 633, 54 N. E. 1065, 55 N. E. 754. Appellee's decedent was killed in 1892. This is the fifth appeal in the action growing out of his death. In the said appeal, reported in 61 N. E. 956, supra, this court, in affirming the judgment upon which the cause before us was brought, directed the lower court to modify its judgment by a reduction of an inconsiderable amount, being on account of an error in interest. The merits of the original action have thus been passed upon. It is claimed with earnestness that some of the questions discussed by counsel for appellants have not been properly reserved; but the special findings show that the merits of the controversy have been fairly tried, and a correct conclusion reached And, even if there be some errors in the rulings upon the pleadings, it seems proper, in the light of the record, to disregard them. The amount of recovery is limited to $3,500 and 6 per cent. interest from March 9, 1898. Judgment affirmed. (28 Ind. App. 523) CITY OF VINCENNES . THUIS.1 (Appellate Court of Indiana, Division No. 2. March 18, 1902.) MUNICIPAL CORPORATIONS-STREET OBSTRUCTIONS-INJURIES-RECKLESS DRIVING-CON TRIBUTORY NEGLIGENCE. 1. A city permitting obstructions in a street is not liable on that account to a traveler injured from another cause, to which such obstructions did not contribute. 2. A city is not negligent per se in failing to exercise its authority to light its streets. а 3. A city's failure to place a fence around water hydrant, which is properly located, cannot render it liable for an injury caused by a traveler driving against it. 4. Where a traveler riding with another as his guest on a dark night, along an unlighted street, with an equal opportunity to discover and avoid danger, and with equal knowledge that they were driving at a reckless speed, is injured by collision with a water hydrant at its proper place in the street, he is guilty of such negligence as precludes a recovery against the city. 'See 73 N. E. 141. On rehearing, 73 N. E. 1098 |