the defendant by the exercise of reasonable care and prudence, an action will lie for the injury. Costello v. Railroad Co., 161 N. Y. 317, 322, 55 N. E. 897; Bittner v. Railway Co., 153 N. Y. 76, 82, 46 N. E. 1044, 60 Am. St. Rep. 58S; Wasmer v. Railroad Co., 80 N. Y. 212, 36 Am. Rep. 608; Silliman v. Lewis, 49 N. Y. 379; Austin v. Steamboat Co., 43 N. Y. 75, 82, 3 Am. Rep. 663; Haley v. Earle, 30 N. Y. 208; Weitzman v. Railroad Co., 33 App. Div. 585, 53 N. Y. Supp. 905; McKeon v. Railway Co., 20 App. Div. 601, 47 N. Y. Supp. 374; Bump v. Railroad Co., 38 App. Div. 60, 55 N. Y. Supp. 962, affirmed on opinion below, 165 N. Y. 636, 59 N. E. 1119; Kenyon v. Railroad Co., 5 Hun, 479; Radley v. Railway Co., 1 App. Cas. 754; Davies v. Mann, 10 Mees. & W. 546; Isbell v. Railroad Co., 27 Conn. 393, 404, 71 Am. Dec. 78; Trow v. Railroad Co., 24 Vt. 487, 495, 58 Am. Dec. 191. If the decedent had been injured at the time that the car first came in contact with the wagon, then, upon the assumption that he was negligent in getting on the tracks, there could have been no recovery. His own negligence in that event would have been a concurring, and hence a proximate, cause, even if the defendant had negligently run against the wagon. But the injury was not inflicted when the car struck the wagon. A new act of the defendant, committed after the first contact, was the cause of the injury. It was the shoving of the wagon along, after the motorman knew of the decedent's peril, without stopping, when, by the use of due care, he could have stopped in time to save him, that caused his death. If the negligence of the decedent was the remote, and the negligence of the defendant was the proximate, cause of the accident, it is conceded that the plaintiff was entitled to recover. Causes are not measured by time, but by events. A proximate cause, juridically considered, is an efficient act of causation with uo cause intervening before the effect, while a remote cause is one that is separated from the effect by an intervening cause. The law looks at the proximate cause only. "In jure non remota causa, sed proxima spectatur." What was the proximate cause of the injury in question? It was the failure of the muotorman to stop his car, after he saw that it had collided with the wagon, in time to prevent the accident. When the car came in contact with the wagon, it was his duty to stop as soon as he could; and he could have stopped in eight feet, as the jury is presumed to have found, upon sufficient evidence. He not only failed to stop, but he shoved the wagon along for more than three times the distance within which he could have stopped, and the death of the intestate was the natural and probable result. The fact that he had time to stop, but did not, shows that the negligence of the decedent and that of the motorman were not concur

rent. The one preceded the other by time enough for the motorman to discharge the duty of prompt action, which the circumstances required. The negligence of the motorman intervened between the negligence of the decedent and the infliction of the injury, and thus became the proximate cause thereof. The negligence of the decedent was remote, as, between it and the injury, another cause intervened, without which the injury would not have been inflicted. The law regards the last cause, without which the accident could not have happened, as the proximate cause. If the motorman had time, after he knew that the decedent was iu a dangerous situation, to think and act, and thereby prevent the casualty, the jury could find him guilty of negligence, and that negligence, being nearest to the time of the injury, was proximate, and not remote. The prior negligence of the deceased did not excuse the subsequent negligence of the motorman, not make the latter a remote cause of the accident, because he had the last clear chance to avoid the sacrifice of life. While but few seconds intervened between the two causes, they were as effective as so many hours would have been to make the latter cause proximate, provided there was time enough to exercise the care which would have prevented the later cause from coming into existence. As we recently held in an important case: "The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred; and the act of one person cannot be said to be the proximate cause of an injury when the act of another person has intervened and directly inflicted it." Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216. In Costello v. Railroad Co., supra, which is analogous in fact and principle to the case now before us, Judge Bartlett said: "Even if contributory negligence is assumed for the argument's sake, the question remains whether the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence. * Was the plaintiff's alleged contributory negligence the direct proximate cause of the accident? It was for the jury to say whether this injury of the plaintiff would have happened if the motorman had vigilantly discharged his responsible duties in the premises." Page 322, 161 N. Y., and page 899, 55 N. E. In a late case in the supreme court of the United States it was held that: "Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident; yet the contributory negligence on his part would not exonerate the defendant,

might well be of opinion that, while there was some negligence on his part in standing where and as he did, yet that the officers of the boat knew just where and how he stood, and might have avoided injuring him if they had used reasonable care to prevent the steamboat from striking the wharf with unusual and unnecessary violence. If such were the facts, the defendant's negligence was the proximate, direct, and efficient cause of the injury." Coasting Co. v. Tolson, 139 U. S. 551, 558, 559, 11 Sup. Ct. 653, 655, 35 L. Ed. 270. In a still later case the same court said: "Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies v. Mann, 10 Mees. & W. 546): that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence." Railroad Co. v. Ives, 144 U. S. 408, 429, 12 Sup. Ct. 679, 687, 36 L. Ed. 485. The elementary writers are equally emphatic. "The party who last has a clear opportunity of avoiding the accident. notwithstanding the negligence of his opponent, is considered solely responsible for it.

*

* It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is any longer disputed, although the same rule in substance, but inaccurately stated, has been made the subject of strenuous controversy. But, furthermore, the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was more immediately caused by the omission of the defendant, after having such notice of the plaintiff's danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if, having sufficient notice to put a prudent man on the alert, he does not take

such precaution as a prudent man would take under similar notice. This rule is almost universally accepted. The most reckless persistence on the part of the one exposed to danger will not justify another in consciously refraining from using care to avoid injury to him." 1 Shear. & R. Neg. (5th Ed.) § 99. So Mr. Wharton says: "It is not enough to say * * that, if the injury would not have occurred had it not been for the plaintiff's negligence, then the plaintiff's negligence is to be regarded as the cause of the injury. Of multitudes of antecedents can it be truly said that, if they had not existed, the injury would not have occurred; yet of how few of such antecedents can it be said that they juridically caused the injury." Whart. Neg. (4th Ed.) 323. In a later section the same author quotes with approval the following from the opinion in Isbell v. Railroad Co., supra: "A remote fault in one party does not, of course, dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. Common justice and common humanity, to say nothing of law, demands this; and it is no answer for the neglect of it to say that the complainant was first in the wrong, since inattention and accidents are to a greater or less extent incident to human affairs. Preventive remedies must therefore always be proportioned to the case in its peculiar circumstances, to the imminency of the danger, the evil to be avoided, and the means at hand of avoiding it." Section 340. He further quotes with approval from Trow v. Railroad Co., supra, as follows: "Therefore, if there be negligence on the part of the plaintiff, yet if, at the time when the injury was committed, it might have been avoided by the defendant in the exercise of reasonable care and prudence, an action will lie for the injury. So, in this case, if the plaintiff were guilty of negligence, or even of positive wrong, in placing his horse on the road, the defendants were bound to the exercise of reasonable care and diligence in the use of their road and management of the engine and train, and if, for want of that care, the injury arose, they are liable." Section 341. In Patterson's Railway Accident Law the following may be found: "That negligence upon the part of the plaintiff which bars his recovery from the defendant must have been a proximate cause of the injury, and it is not a proximate, but only a remote, cause of the injury, when the defendant, notwithstanding the plaintiff's negligence, might, by the exercise of ordinary care and skill, have avoided the doing of the injury." Section 58. "Although a person be placed in peril by his own negligence or that of another, yet the unoffending party must nevertheless use such care, under the circumstances, to prevent injury, as a person of ordinary

* *

prudence would usually exercise in the same predicament. If A., by his own negligence, be placed in a peril of injury from B., it is the duty of B., on discovering A.'s peril to use in good faith whatever opportunity may be present to avoid injury to A. If B. neglect to do this, such neglect, and not the previous neglect of A., will be regarded as the proximate cause of the injury, as then, for the first time, it may be, B. owes A. a duty to use some degree of care for his safety." Thomas, Neg. 360. Judge Thompson lays down the rule in this form: "The sound principle, then, is that the defense of contributory negligence is not available where the defendant was guilty of the negligent act or omission subsequently to the time when he ought to have known that the negligence of the plaintiff or of the person injured had created a position of peril." Thomp. Neg. (2d Ed.) § 232. The learned author further says: "The courts are almost universally agreed that, notwithstanding the fact that the plaintiff or the person injured has been guilty of some negligence in exposing his person or property to an injury at the hands of the defendant, yet, if the defendant discover the exposed situation of the person or property in time, by the exercise of ordinary or reasonable care after so discovering it, to avoid injuring it, and nevertheless fail to do so, the contributory negligence of the plaintiff or the person injured does not bar a recovery of damages fron the defendant." Section 238. "The fact that one has placed himself in a position of danger can never be an excuse for another carelessly or recklessly injuring him. It may be said in such a case the negligence of the plaintiff only put her in a position of danger, and was therefore only the remote cause of the injury, while the subsequent intervening negligence of the defendant was the proximate cause." Healey V. Railroad Co., 14 Jones & S. 473, 481. I think that the negligence of the defendant was the "proximate" cause of the injury, as that word is understood by the courts and elementary writers, and that the defendant, after notice of the decedent's danger, could not negligently run him down, any more than it could willfully run him down. I regret that the court is about to lay down a rule which will permit one man to negligently run over another whenever the latter, by his own negligence, gets into a place of danger, even if the former discovers it in time to save him by using reasonable care. Such a rule puts life and limb in peril, and withholds from the citizen the protection which it is the duty of courts to provide. My vote is in favor of affirmance.

PARKER, C. J., and GRAY and HAIGHT, JJ., concur with O'BRIEN, J. BARTLETT and MARTIN, JJ., concur with VANN, J.

Judgment reversed, etc.

(158 Ind. 454) PITTSBURGH, FT. W. & C. RY. CO. v. GILLESPIE, Surveyor.

(Supreme Court of Indiana. May 2, 1902.) DRAINS CARE OF DRAINS-ALLOTMENT-DECISION OF CIRCUIT COURT-APPEAL.

Burns' Rev. St. 1894, §§ 5633-5635, provides that the county surveyor shall allot to the owner of each tract of land assessed for the construction of a ditch the portion which such owner shall keep in repair, and that he shall give notice thereof to the landowners, and hear all objections to such allotment, which he may confirm or change as justice may require. Section 5636 authorizes au appeal from the determination of the surveyor to the circuit court, and provides that its decision shall be final. Held, that an appeal would not lie from the decision of the circuit court in such case.

Appeal from circuit court, Kosciusko county; H. S. Biggs, Judge.

Objections by the Pittsburgh, Ft. Wayne & Chicago Railway Company to an apportionment of a ditch for repair purposes by Morton Gillespie, county surveyor. From a decision of the surveyor the company appealed to the circuit court, and from its decision the company appeals. Appeal dismissed.

Zollars, Worden & Zollars, for appellant. Andrew A. Adams, for appellee.

JORDAN, C. J. Appellee, in November, 1898, as the surveyor of Whitley county, made allotments, under the statute, for the purpose of cleaning out and keeping in repair certain portions of a public ditch known as the "Mud Run" or "Gearin Ditch," which had been previously established and constructed in the counties of Allen and Whitley. The portion of the ditch allotted by the surveyor to appellant railroad company was in number of feet 5,500. From this decision of the surveyor appellant appealed to the Whitley circuit court, from which the cause was subsequently venued to the Kosciusko circuit court, wherein, upon a trial had, the court reduced the allotment of 5,500 feet, as made by the surveyor to appellant, to 4,500 feet. The 1,000 feet deducted by the court from appellant's original allotment was by the court added to the allotment apportioned to Union township, of Whitley county, and the township's allotment, as made by the surveyor, was thereby increased 1,000 feet. court thereupon ordered and adjudged that the allotments so made should stand, and they were in all respects ratified and confirmed by the court. From this judgment appellant prosecutes this appeal, and seeks a reversal thereof for numerous alleged errors of the trial court.

The

The provisions of the statute relating to and authorizing allotments of a public ditch to be made by the county surveyor after the construction thereof, for the purpose of cleaning and keeping it in repair, in part are as follows: Section 5633, Burns' Rev. St. 1894, § 2 (Acts 1889, p. 353), empowers the county surveyor to allot to the owner of each tract

of land assessed for the construction of a drain or ditch the portion which he should annually clean out and keep in repair. Section 5634 provides that the surveyor shall reduce such allotments to writing, and record the same in a book to be kept for that purpose, and shall give notice to the landowners of the time and place where and when he will hear all objections that may be made to such allotments. Section 5635 provides that upon the day named in such notice the surveyor shall be present at the time and place therein mentioned, and shall hear all objections made to such allotments, etc., and that after hearing all objections that may be offered to such allotments he shall confirm or change the same as justice may require, and enter an order accordingly. Section 5636 provides that any person or corporation aggrieved may appeal from the order of the surveyor to the circuit or superior court of the county by filing with the clerk of the court within 10 days from the time of such order an undertaking conditional that he will duly prosecute such appeal and pay all costs that may be adjudged against him, etc.; whereupon such clerk shall issue a notice in the nature of a summons to such surveyor, which shall be served by the sheriff of said county. It is further provided that "all other persons interested shall take notice of such appeal, which shall be tried by the court." If the court reduces the allotment one-fifth in amount, then all costs occasioned by such appeal shall be taxed against said surveyor, and paid out of the general funds in the county treasury not otherwise appropriated; otherwise the costs shall be adjudged against appellant. If more than one person appeals separately, the cases shall be consolidated and tried together. The court may confirm the allotment made by the surveyor or change the same, and the statute then declares that the decision upon such appeal "shall be final and conclusive."

At the very threshold we are confronted with a question in respect to our jurisdiction in this appeal. The county surveyor, under the statute, in making the ditch allotments, simply acts in an administrative capacity, and, were it not for the express provision of the statute granting an appeal to the circuit or superior court by any person aggrieved by his order, no appeal therefrom could be taken. Ellis v. Steuben Co., 153 Ind. 91, 54 N. E. 382. The legislature, however, seems to have deemed it proper to allow an appeal from the order of the surveyor made by him in the discharge of his administerial duty imposed by law, in order to bring the matters involved in the allotment proceedings before a court wherein such matters could be judicially determined and settled. But, having granted this right of appeal, the legislature seems to have been impressed with the fact that matters involved in a proceeding in respect to the mere cleaning out and keeping a public ditch in repair

were not of such importance as to justify an appeal to a higher court, and thus enable the litigation between the parties to be continued indefinitely. Consequently it will be seen that it is declared in positive and unmistakable language, in section 5 of the original act (section 5636, Burns' Rev. St. 1894), that "the decision upon such appeal shall be final and conclusive." (Our italics.) If the legislature did not intend by this provision to exclude or deny the further right of appeal, then the language employed is without meaning or purpose, and such an absurdity cannot be attributed to that body. To interpret the language in question as not excluding the right of appeal from the judgment of the circuit court would, in effect, be to eliminate the word "final" from the statute. If it does not signify that it was the legislative will that the decision or judgment of the circuit court in respect to the matters involved in the proceeding should be an end to the controversy, so far, at least, as any appeal was concerned, then no legitimate use or purpose for employing the term or terms can in reason be suggested. To declare that the decision of the court shall be "final and conclusive" is certainly the equivalent of declaring that the court's judgment shall not be subject to a review on appeal. The word "final" has a well-understood and accepted meaning. The Century Dictionary defines it to be in a legal sense as follows: "Precluding further controversy on the question passed upon, as a statute declaring that the decision of a specified court shall be final." In 18 Am. & Eng. Enc. Law (2d Ed.) p. 19, it is said that "final" means conclusive, from which there is no appeal. In Re Mayor, etc., of City of New York, 49 N. Y. 150, in which the matter of the widening and straightening of Broadway street in the city of New York was involved, the statute under which the proceedings were had provided that the report of the commissioners in such cases, when confirmed, "shall be final and conclusive." The court in construing this language in that appeal held that it had reference to an appeal from the judgment of the court confirming the report, and, while the provision was intended to deny an appeal from such judgment, still it did not prohibit an application to set aside the judgment confirming the report of the commissioners on the ground of irregularity, fraud, or mistake. An act of the legislature of the state of Connecticut provided that "the board of councilmen for the city of South Norwalk shall be the final judges of the election returns, and of the validity of elections and qualifications of its own members." In Selleet v. Common Council, 40 Conn. 361, in considering this statute, the court said: "By the use of the word 'final' the legislature intended to devest the superior court of jurisdiction in such cases, and make the common council the sole tribunal to determine the legality of the election of its own members." In People v. Fitzgerald, 41 Mich. 2, 2 N. W.

179, a provision in a city charter made the common council the final judges of the election of aldermen. The phrase “final judges," as employed in the charter, was held to deny the jurisdiction of the court to reinstate a member who had been excluded from the board of aldermen without a proper hearing. Coon v. Mason Co., 22 Ill. 666, was a proceeding before the county court to lay out and open a public highway. The statute under which the proceeding was instituted granted an appeal from the judgment of the county court to the circuit court, and provided that the decision of the circuit court in such cases should be final. An appeal in that case was prosecuted from the judgment of the circuit court to the supreme court. The latter, in construing this provision of the statute, said, "We are of the opinion that the legislature intended to prohibit the prosecution of a writ of error as well as an appeal," and the motion to dismiss was sustained. See, also, Simon v. Common Council, 9 Or. 437; Snell v. Manufacturing Co., 41 Mass. 296; Bateman v. Megowan, 1 Metc. (Ky.) 538; Newcum v. Kirtley, 13 B. Mon. 517; Moore v. Mayfield, 47 Ill. 167. A statute was enacted by our legislature in 1861 providing that in a proceeding before a board of commissioners to obtain a license to sell intoxicating liquors an appeal from the order of the board might be taken to the circult or common pleas court, and further provided that the decision or verdict of the jury in the latter court "shåll be final and conclusive, and without appeal therefrom." In the case of Board v. Lease, 22 Ind. 261, which was an appeal from the judgment of the common pleas court in an application for a license to retail liquors, this court, in construing that statute in respect to the appeal in that case, said: "Under the statute of 1861 we are of opinion we cannot entertain this appeal. The statute makes the determination of the circuit or common pleas court to which an appeal may be taken final; therefore we cannot look into the case to determine even whether the change of venue was properly taken." The appeal in that case was dismissed, on the court's own motion. In Brown v. Porter, 37 Ind. 206, which was also an application for a license to sell. intoxicating liquors, the holding in the Lease Case, 22 Ind. 261, was followed, the court saying: "The language of the statute is a little ambiguous, but we think it was the intention of the legislature that no appeal should lie to this court in such cases. Per haps the reason was that the time of this court should not be consumed in the decision of controversies of such character." The appeal in this latter case was also dismissed by the court on its own motion for want of jurisdiction. The fact that the statute of 1861, in addition to the phrase "final and conclusive," contained the words "and without appeal therefrom," is not of importance, as these words were simply a repeti

tion of, or rather served to make more evi. dent, that which was declared by the immediately preceding words, "final and conclusive." The case of Grusenmeyer v. City of Logansport, 76 Ind. 549, involved the right of an appeal to the circuit court from an order of the board of commissioners annexing certain territory to the city of Logansport, and that case, under the provision of the statute therein involved, is clearly distinguishable from the holding in the present appeal. The provision of the statute there in issue declared that the entry or order of the board of commissioners, or an attested copy thereof, "shall be conclusive evidence in all courts of such annexation." This court held in that case that this provision of the statute did not deny the right of appeal from the order of the board to the circuit court, and thereby overruled Trustees v. Manck, 35 Ind. 51, and other decisions of this court, resting on the. doctrine asserted in French v. Lighty, 9 Ind. 475, to the effect that there is no right of appeal in "a special proceeding, for a special purpose, based on a special statute, which gives no right of appeal." It follows, and we so conclude, that the appeal in the case at bar is prohibited by the statute in controversy; hence we have no power to entertain the same, and therefore are constrained to dismiss it on our own motion, for want of jurisdiction.

Appeal dismissed.

(158 Ind. 438)

MILLER et al. v. STEPHENS. (Supreme Court of Indiana. April 30, 1902.) DOWER ELECTION BETWEEN WILL AND STATUTE OF DESCENTS-PERSONAL PROPERTY-REALTY-MODE OF ELECTION-STATUTORY REQUIREMENTS-PERSONAL REPRESENTATIVE OF WIDOW-RIGHT TO QUESTION VALIDITY OF ELECTION.

1. Burns' Rev. St. 1901, § 2666, provides that, where a husband leaves lands or a legacy to his widow in lieu of her statutory portion in his lands, she shall take under the will, unless, within a year after its record, she makes a contrary election by writing signed and acknowledged. Section 2648 provides that where a husband dies testate his widow shall receive one-third of his personalty, unless within 90 days after the recording of the will she elects to take under the will. Held, that the two acts are independent, substantive provisions, each of which should be enforced, as well in estates composed of both realty and personalty as in those composed of a single class.

2. Burns' Rev. St. § 2666, passed in 1885, requires the election of a widow to be in writing and acknowledged. Section 2648, passed in 1891, provides that a widow's election as to personalty shall be made in the same manner as widows were required to elect at the time of the adoption of the act. Held to require the election under the act of 1891 to be in writing and acknowledged.

3. Although the right given a widow by Burns' Rev. St. 1901, 88 2648, 2666, to elect whether she will take under her husband's will or under the statutes, is a personal right, the personal representative of the widow is not estopped from questioning the validity of an attempted election.