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is not shown that he did not know of ap- tories, although there was evidence that it pellee's peril and the facts stated require was running at a still higher rate. The an inference that he either did or ought evidence of a civil engineer, who was near, to have known it. Indianapolis St. Ry. Co. was that it ran 140 feet or more after the V. Seerley (Ind. App.) 72 N. E. 169. As collision before it was stopped. The jury in against this finding of fact presumptions are answer to interrogatories as heretofore statineffective. The facts here involved are much ed, fixed such distance at 60 feet. The undisstronger than those which were considered puted evdence is that a car running at 20 by this court in the case last cited, which is miles an hour could be stopped in 60 feet. conclusive upon the proposition that there It does not appear that the motorman exerwas no error in overruling appellant's motion cised or attempted to exercise the slightest confor judgment upon the answers to interroga- trol over it prior to the accident. His opportuntories, notwithstanding the general verdict. ity to observe the buggy driving toward and

The assignment that the court erred in across the track was not limited. He knew the overruling appellant's motion for a new rate of speed at which he was running, and trial, presents the question as to whether his ability or inability to control it, and thus the evidence sustains the verdict, and the ac- advised, his failure to check or attempt to tion of the court in giving and refusing to check speed, after he saw appellee driving give certain specified instructions. Appellee toward and upon the track, affords support to traveled upon the right hand side of the the verdict. It is noticeable that the motorstreet until he was opposite a house where man was not a witness. Indianapolis St. he desired to go, and for that purpose and Ry. Co. v. Darnell, 32 Ind. App. 687, 694, 68 reason turned to drive across the street. N. E. 609. The house was midway in the block, and he The eighth instruction given by the court or any other person desiring to go there had is substantially the same as the seventh ina perfect right to cross the street in front struction given in Indianapolis St. Ry. Co. of it. The street car company did not have v. Seerley, supra, and approved by this court. an exclusive right to any part of the highway, It, in connection with the other instrucand while, because of the character of the tions given, states the doctrine known as vehicle used by it and the manner of such that of "the last clear chance"-a doctrine use, it does have a preferential right to the firmly established on both principle and portion occupied by its tracks, other persons authority. Except for it, the greater the using the street are not excluded from using original negligence of a defendant and the that portion thereof on which the track is more gross its delinquency, the less likelihood laid. Citizens' St. Ry. Co. v. Hamer. 29 Ind. of a recovery against it on account of injury App. 426, 62 N. E. 658, 63 N. E. 778; De Lon thereby caused. It serves the broadest prinv. Kokomo, 22 Ind. App. 377, 53 N. E. 847; ciples of public policy. The state is interIndianapolis, etc., Co. v. Slifer (Ind. App.) ested, not alone that justice be done in a giv74 N. E. 19; Hennessey v. Taylor (Mass.) en instance, but that the law be so declared 76 N. E. 224; Bedell v. Detroit, etc. (Mich.) as that it will tend to the security of life 92 N. W. 349; Robards v. Indianapolis St. and limb. The government is dependent Ry. Co., 32 Ind. App. 297, 306, 66 N. E. 66, upon its citizenship, not only politically, but 67 N. E. 953. Appellee testified as follows: economically, and high as the duty which “I started to go across, and as I went I kind devolves upon the courts of protecting acof angled across to get around in front of quired rights of property is, it is subordinate Baker's house. I was above the house a to the one which has as its object the unlittle, and I wanted to get across.” The interrupted enjoyment of that personal secar was at that time 225 feet distant. further testified that he looked north when and in which every individual is entitled to he started to drive across and saw the car, the fullest protection which society can give. and which he subsequently ascertained to And therefore the language of the Supreme be tue distance above stated, and did not see Court of Indiana, which follows: "It is now how fast it was coming until it was two or perfectly well settled that the paintiff may three cars' lengths away, at which time it recover damages for an injury caused by the was coming “awful fast. It was kind of defendant's negligence, notwithstanding the rocking and puffing like a threshing machine. plaintiff's own negligence exposed him to the I seen I couldn't cross, and I pulled the risk of injury, if such injury was more horse around to my left. I was trying to get immediately caused by the defendant's off the track. I did not try to go across omission, after becoming aware of the plainthe track because the car would have hit the tiff's danger, to use ordinary care for the buggy in the center. I pulled the horse purpose of avoiding injury to him. We know around as short as I could. I did not get of no court of last resort in which this rule the buggy cramped. I was going angling is longer disputed." Southern Indiana R. Co. southwest. The front buggy wheel was to- v. Fine, 163 Ind. 617, 72 N. E. 589, and auward the track and the car struck it.The thorities on page 626 of 163 Ind., page 592 car was run at a high speed up to the very of 72 N. E. The doctrine has been many time of the collision, 20 miles an hour, as times stated and applied to facts similar to found by the jury in answer to interroga- those under consideration, as shown by the

He curity which is incident to human existence

,

following cases and authorities therein cited. the car while on the east track or on the Citizens' St. Ry. Co. v. Hamer, supra; Indian- space between the tracks he could have avoidapolis St. Ry. Co. v. Schmidt, supra; In- ed the injury. These findings conclusively dianapolis St. Ry. Co. v. Marschke, supra; show that appellee voluntarily and needlessly Indianapolis Traction & Terminal Co. v. encountered danger apparent to casual obserSmith (No. 5,736; May 29, 1906) 77 N. E. 1140; vation, under circumstances free from conIndianapolis St. Ry. Co. v. Seerley, supra; fusion and inconsistent with ordinary pruCleveland, etc., Ry. Co. v. Klee, 154 Ind. 430, dence. He simply miscalculated the time it 56 N. E. 234.

would take him to cross and get out of the The instructions given by the court fully way. Many cases can be cited holding incover the case and fairly submitted the jured parties to have been guilty of contribissues of fact. The questions upon which utory negligence on facts not more clearly the application of the foregoing rule was indicating rashness than in the case at bar. dependent, were properly left to the jury. De Lon v. Kokomo, etc., Co., 22 Ind. App. 377, There was therefore no error either in the 53 N. E. 847, a decision of the question of apinstructions given according with the propo- pellee's negligence; Young v. Citizens' St. Ry. sitions above stated, or in refusing those Co., 148 Ind. 54, 44 N. E. 927, 47 N. E. 142; antagonistic thereto.

Citizens', etc., Co. v. Helvie, 22 Ind. App. 515, Judgment affirmed.

53 N. E. 191; Indianapolis St. Ry. Co. v. Ten

ner, 32 Ind. App. 3311, 67 N. E. 1044; IndianROBINSON, C. J., and MYERS, J., concur. apolis St. Ry. Co. v. Marschke (May 18, 1906; BLACK, J., concurs in result.

No. 20,830) 77 N. E. 945; Robards v. Indian

apolis St. Ry. Co., 32 Ind. App. 297, 66 N. E. COMSTOCK, P. J. (dissenting:). The facts 66, 67 N. E. 953; Indianapolis St. Ry. Co. v. specially disclose that, at the time of the ac- Zaring, 33 Ind. App. 297, 71 N. E. 270, 501 ; cident, appellee was 40 years old, in the full Marchal v. Indianapolis St. Ry. Co., 28 Ind. rossession of his physical and mental facul- App. 133, 62 N. E. 286; Kessler v. Citizens', ties; driving a gentle horse, under complete etc., Co., 20 Ind. App. 427, 50 N. E. 891; Mocontrol, which he might have stopped at any ran v. Leslie (Ind. App.) 70 N. E. 162; Kortime or place; that when his horse was on rady v. L. S. & M. S. R. Co., 131 Ind. 261, 29 N. the east track nothing prevented his knowing E. 1069; L. E. & W. R. Co. v. Pence, 24 Ind. the close proximity of the car. All his acts App. 12, 55 N. E. 1036. While all reasonable in attempting to cross the tracks were vol- | presumptions are indulged in favor of general untary. There was no necessity or emer- verdicts, yet if the answers returned by the gency controlling his movements. Nothing jury are irreconcilably in conflict therewith, was done by appellant to mislead or deceive they will overthrow the general verdict. him, or throw him off his guard. The car While the general verdict finds that the plainwas coming toward him, and he could have tiff was free from contributory negligence, observed its movements at all times when the facts specially found show plaintiff to it was within 500 feet. When the horse be- have been guilty of contributory negligence gan to turn toward the tracks, the car was and are irreconcilably in conflict with that about 225 feet away; when on the east track, verdict. Cleveland, etc., R. Co. v. Heine, 28 125 feet away; when on the space between Ind. App. 163, 62 N. E. 455; Bedford, etc., the two tracks, 60 feet away. He made a mis- Co. v. Thomas, 29 Ind. App. 85, 63 N. E. 880. calculation of the time he would have to cross It is contended, however, that appellee's in front of it and concluded that he would conduct is not contributory negligence, behave time to cross the track. When he was cause appellant could have avoided the in10 feet from the place of the accident he was jury, by the use of ordinary care, after distraveling about 3 miles and the car about covering the exposed situation of appellee. 20 miles an hour, and 125 feet away. When This claim is based upon the doctrine of "last he was 20 feet from the place of the accident clear chance." To knowingly inflict injury he was traveling about 5 miles and the car when such injury can be avoided by the use about 20 miles an hour 225 feet away. When of ordinary care, amounts to willfulness. he was 30 feet from the place of the accident The motorman is not required to assume that he was traveling 5 or 6 miles and the car an adult, in the full possession of his facul20 miles an hour. He first came into danger ties, will needlessly expose himself to danger. when he was about 10 feet from the place of The motorman was not bound to anticipate the accident, which distance he traveled until that appellee would turn upon the track. he was struck. He did not think to observe When the appellee turned, the danger became the car while he was driving over the east imminent upon the hypothesis that he would track and the space between the tracks. continue across the track. The car was then Plaintiff was familiar with the location and 60 feet off. It required this distance to stop all its conditions. The accident happened in the car.

This gave the motorman no time to a sparsely settled part of the city, 160 feet apprehend the dangerous situation in which from the nearest intersecting street. Facts the appellee had placed himself. Up to the are found from which it may be inferred that time of plaintiff's entering upon the track, no the car might have been stopped within 60 danger was to be apprehended from the speed feet. It is manifest that had he observed of the car, for the accident occurred between

207, 46 Pac. 889, 34 L. R. A. 350. If it had li

crossings. The motorman had as much rea- opinion overthrows the doctrine, well recog. son to anticipate that appellee was in time nized, that one cannot hold another responto cross the track in front of the moving car sible for errors of his own judgment. In as had the appellee to believe that he could effect it says that to be excused from the redo so. If two parties are contemporaneous- sults of one's negligence, it is but necessary ly in fault and by their mutual negligence an for the injured party to show that he erred injury ensues to one, the doctrine of "last in his judgment. Negligence should not be clear chance" does not apply. Robards v. encouraged, either upon the part of common Indianapolis St. Ry. Co., supra; Everett v. carriers or travelers. The prevailing opinion Los Angeles, etc., R. Co., 115 Cal. 105, 43 Pac. holds out to one willing to risk his life or .

limb in an unnecessary danger to cross a been apparent to the motorman that the horse railway in full view and in front of an apwas frightened or that appellee for any rea- proaching car, the assurance that if he is son had lost control of the horse and was unfortunate enough to receive injury, he shall in danger, then it would have been the duty be compensated therefor, notwithstanding the of the motorman to stop the car if possible. rashness of his own unnecessary act. All Citizens' St. Ry. Co. v. Lowe, 12 Ind. App. decisions up to this time hold that the duties 54, 39 N. E. 165, and cases cited. The doc- and rights of the traveler and the common trine under consideration applies when it is carrier are reciprocal. Such decisions are apparent that the party is in a position of held for naught in the prevailing opinion. danger from which he cannot extricate him- Being of the opinion that contributory negself. C., C., C. & St. L. R. Co. v. Klee, 154 ligence is still a defense in actions of this Ind. 430, 56 N. E. 234; Krenzer v. P., C., C. character, and that such defense is clearly & St. L. R. Co., 151 Ind. 587, 43 N. E. 649, established by the special finding of facts 52 N. E. 220, 68 Am. St. Rep. 252; Dull v. and the appellee's own testimony, I am unC., C., C. & St. L. R. Co., 21 Ind. App. 571, able to agree in the opinion affirming the 52 N. E. 1013. To justify the application of judgment. the doctrine in this case, the motorman must have had the “last clear chance"; that is,

WILEY, J. (dissenting). From the facts evident and last to have avoided the danger specially found, I am clearly of the opinion after he had learned of it and knew that the

that appellee was shown to be guilty of consafety of appellee depended solely upon him.

tributory negligence which would preclude Daily observation of human conduct does not

his recovery. If the doctrine declared in the lead to the conclusion that sane adults

prevailing opinion is to obtain, it seems to will place themselves in positions of open

me that the rule of contributory negligence danger. The motorman was not required to

is taken out of cases of this character. assume that the appellee would court danger or disregard all prudence, and when appel

(74 Ohio St. 208) lee's danger became apparent there was not DORSCH V. BEAUMONT GLASS CO. time and space to stop the car.

(Supreme Court of Ohio. May 1, 1906.) It is insisted, in this case, by the appellee

MUNICIPAL CORPORATIONS - STREETS-POWER that even if he was negligent in going upon

TO NARROW. the track, when he was struck was struck by the

The provisions of section 1536–148, Rev. car that negligence had ceased, because he St. 1906, which empower a court of common was attempting to get out of the way of the

pleas to establish or vacate a street or alley,

do not authorize such court to narrow the same. approaching car; that after his negligence

(Ed. Note.—For cases in point, see vol. 36, there was a change in the situation, and a Cent. Dig. Municipal Corporations, $ 720.] new act of negligence was imputable to ap- (Syllabus by the Court.) pellant, which became the proximate cause of

Error to Circuit Court, Belmont County. the injury. If appellee was guilty of negli

Petition of the Beaumont Glass Company gence in going upon the track then whether he was injured in attempting to go backward

for the vacation of a city street. George or forward in the instant of his injury, to

Dorsch, an abutting owner, moved to strike get out of the way of the car, could make no

the petition from the files. A judgment vacatdifference. The rule of the “last clear

ing the street was affirmed in the circuit court, chance" does not apply where the act of the

and Dorsch brings error. Reversed and peti

tion dismissed. injured party and the defendant are substantially concurrent. The conduct of the de- On the 9th day of September, 1901, the fendant in driving upon the track, cannot be Beaumont Glass Company, a corporation and separated from the injury. No court will defendant in error, filed its petition in the hold that a railroad company may run down court of common pleas of Belmont county, a party though he is negligently on its track, addressed to one of the judges of said court, when by the exercise of ordinary care it can of which the following is a copy, omitting capbe avoided. No more can the driver of a pri- tion and siguature: "The Beaumont Class vate vehicle commit a like brutality. Defend

Defend- Company, a corporation duly incorporated ants have been held liable when such acts have and organized under the laws of the state of occurred, either because they showed willful- West Virginia, respectfully represents that ness or å want of due care. The majority it is the owner of lots numbers 202 and 203

is

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in the city of Martins Ferry, Belmont county, Driggs & Heinlein, for plaintiff in error. Ohio, formerly known as lots 227 and 228, George Duncan, for defendant in error. and a piece of ground east thereof and between said lots and the Ohio river, and PRICE, J. (after stating the facts). The known as “lots 3 and 4’; that all said lots petition filed in the court of common pleas, are in the immediate vicinity of the part of did not ask for the vacation of Clay street Clay street in said city hereinafter described, between Front street and the Ohio river, but the said lot No. 202 and said lot 3 abutting up- of a strip 14 feet in width on one side of on the north line thereof, between the points Clay street between Front street and the hereinafter described and the portion of said Ohio river. The evident effect of granting street hereinafter asked to be vacated. The the prayer of the petition was to narrow said Beaumont Glass Company respect- said street between those points, from 66 to fuily requests that that part of Clay street 52 feet in width, and the question is, had the along the south side of said lot 202 and said court authority to make such an order? lot 3, hereinbefore mentioned, between Front This question was raised by demurrer to the street and the Ohio river and for the width petition, and the ruling upon it by the court of 14 feet between said Front street and the of common pleas was assigned for error in Ohio river, be vacated, for the reasons that the circuit court, and its judgment upon the the same is no longer of any public use question is now challenged in this court. If whatever; and that the same never has been

we decide that the demurrer should have and never will be used by the public; that been sustained, other matters in the record it will not be detrimental, but will conduce and discussed by counsel need not be conto the general interest of said city, that thu sidered. The only authority conferred on the said portion of said street be vacated.” court of common pleas, to either establish or Notice of the filing and pendency of the peti

vacate a street or alley, within a hamlet or tion was given by publication in a newspaper

municipal corporation, is found in section of general circulation in the county as the

1536–148 (section 2655), Rev. St. 1906, which law directs.

reads: "On petition filed in the court of comThe plaintiff in error, George Dorsch, who

mon pleas by any person owning a lot in any owns lot 2 abutting on that part of Clay

city or in an incorporated or unincorporated street sought to be vacated, filed a motion to

hamlet or village, for the establishment or strike the petition from the files, because it

vacation of a street or alley in the immediate was not verified. His motion was overruled

vicinity of such lot, the court upon hearing, and the court permitted the petition to be

and being satisfied that it will conduce to the verified. He then filed a demurrer to the

general interests of such city, hamlet or vilpetition on two grounds: (1) The court has

lage, may declare such street or alley estabno jurisdiction of the subject-matter of the

lished or vacated; but the remedy shall be petition; (2) said

in addition to those prescribed in this title." (2) said petition does not state sufficient facts to authorize the court to grant

The next section prescribes the character of

notice to be given of the filing and pendency the relief prayed for. The demurrer was

of the petition, and provides for the right of overruled and exception taken. Dorsch an

any person other than the petitioner, who swered, alleging in substance, his ownership

owns a lot in the immediate vicinity of the of lot 2 in said city, giving its boundaries by

street or alley prayed to be vacated or esdifferent streets, and that it abutted on that

tablished, to claim damages, and that on such part of Clay street sought to be vacated;

claim the court may hear proof in reference that Clay street is 66 feet in width, and that

thereto and render judgment against the petito vacate the 14 feet along one side thereof

tioner for such damages as it may think would narrow the street to 52 feet between

just, and that a jury may be demanded as Front street and the Ohio river. He further

in other cases, etc. It is well enough to trace alleges that if said strip is vacated, the peti

this legislation, as it will afford aid in its tioner will take possession thereof, and that

construction when compared with other legisif the same is vacated he will be damaged

lation authorizing the councils of municipal in the sum of $1,000. There is another para

corporations to establish, vacate or narrow graph in the answer, not material to the con- streets and alleys. sideration of the case here. The petitioner

The first provision on the subject to which demurred to the answer, and the dernurrer we have access, was made in 1828, in "an act was overruled. The reply denies all the

to provide for the vacation of town plats, averments of the answer, except that Dorsch and for other purposes.” 29 Ohio Laws, p. 352. owns lot 2, and that it is bounded as de

This was amended March 5, 1839, to read in scribed in the answer. The court heard evi

part as follows: dence on the issues joined, found for the peti- "Section 1. That on petition filed in the tioner and ordered vacation as prayed for, court of common pleas of any county in this awarding to Dorsch damages in the sum of state by any person or persons owning any one dollar. A bill of exceptions was taken lot or lots in any town or city in the said and error prosecuted in the circuit court county, praying that any alley or alleys, street where the judgment was affirmed.

or streets, in the immediate vicinity of such lot or lots, may be established or vacated, The next section provides for notice of the the said court may, and they are hereby filing and prayer of the petition by six weeks authorized, upon hearing and being satisfied publication; and section 1546–147 provides that it will conduce to the general interests that "the order of council vacating or narof such town or city, to declare such alley rowing any street or alley which has been or alleys, street or streets, established or dedicated to public use by the proprietor, vacated." See 37 Ohio Laws, p. 44.

shall to the extent to which the same is The next section (2) provides for the mode vacated or narrowed, operate as a revocation of procedure, the right of another lot owner of the acceptance thereof by the council; but to claim damages, etc., in all respects similar the right of way and easement therein of to the mode prescribed in the present statute. any lot owner shall not be impaired thereby." Omitting a few surplus words, the act of It is sufficient for the purposes of this case, March 5, 1839, above quoted is present sec- that we trace the principal features of the tion 1536–148 (2655), Rev. St. 1906, except above sections back as far as 1853 and to that its last clause, “but the remedy shall be the act of the Legislature passed March 11, in addition to those prescribed in this title,1853 (51 Ohio Laws, p. 366), $ 13, and which was not in the old act. The act of March was amended by section 3 of an act passed 5, 1839, was carried into Swan & Critchfield April 29, 1854. See 52 Ohio Laws, p. 75. By Statutes, word for word, as found in volume the original and the amended section, “the 2, p. 1487.

city council of any city or incorporated vilIn 1878 (see 75 Ohio Laws, p. 161) the stat- lage of this state, on petition filed by any utes relating to municipal corporations were person or persons owning any lot or lots, revised and amended so as to form a Code in any such city or incorporated village, of municipal law, and section 15, p. 391, of praying that any street or streets, alley or that revision is precisely the same as our alleys, in the immediate vicinity of such lot present statute on the subject, and there, for or lots, may be vacated or narrowed, may, the first time appears the clause, “but the and they are hereby authorized upon hearing remedy shall be in addition to those pre- and being satisfied that there is good cause scribed in this title." There is significance for such vacation or narrowing, and that it in this fact when it is seen that the three will not be detrimental to the general interest, preceding sections provide "for vacation of and that the same should be made, declare such streets by council," thus bringing into juxta- street or streets, alley or alleys, vacated or narposition the different provisions respecting rowed. *" There was a provision for the vacation of streets and alleys. See sec- notice by publication for a certain time before tions 12, 13, 14, and 15 of 75 Ohio Laws, pp. the hearing on the petition. The above section 390, 391. In 1879, Section 15 of the Code is found in exact terms in the revision by of 1878 was slightly amended, but the change Swan & Critchfield (volume 2, p. 1531). It is of no importance here. See 76 Ohio Laws, was a part of "an act to provide for the orp. 25. The same provision, omitting surplus ganization and government of municipal corwords, is found in the revision of all our porations,” passed May 7 1869 (66 Ohio Laws, statutes in 1880. Thus we have the history p. 149), and known therein as section 491. of th:: jurisdiction of the court of common Several sections of that act, including 491, ples over the establishment or vacation of were amended April 18, 1870. See 67 Ohio streets and alleys, and in none of the stages Laws, p. 78. In the amendment the power of the legislation in all its past history, do to change the name of the city or village we find authority given the court to narrow was added. As such, it was carried into the a street or alley, unless that authority is revision of 1880. We find it again with a included in the word "vacate.” In each was slight amendment made in 1893. See 90 Ohio given the power to establish and vacate Laws, p. 350. In substance, if not literally, streets and alleys, and that is the only power we so find it now. vested in the court by the statute on that In their origin, and in the different resubject. However, there is authority for nar- visions and amendments, the statute authorrowing streets and alleys, and it is conferred ized the council on proper petition and notice on the council of a city or village by section to vacate or narrow streets or alleys, and 1536–145 (section 2652), Rev. St. 1906, which when codification of the statutes for the reads in part: "The council of any city or organization and government of municipal village, on petition by any person owning a corporations took place, the statutory aulot in the corporation praying that a street thority for councils to vacate and narrow or alley in the immediate vicinity of such streets and alleys was brought in close relalot may be vacated or narrowed, or the name tion to the statute authorizing a court of thereof changed, may upon hearing and being common pleas to establish or vacate streets satisfied that there is good cause for such and alleys. They were kindred provisions change of name, vacation or narrowing, that from their first inception, and have long ago it will not be detrimental to the general inter- been brought together as they are now found. est, and that the same should be made, de- What is the fair inference to be drawn from clare by ordinance such street or alley va- the comparison we have made? It is, that cated, narrowed, or the name thereof from the very first creation of the authority changed," etc.

in the court and in the council of the city

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