(54 Ind. App. 401) WALDA v. FT. WAYNE & W. V. TRAC TION CO. (No. 8,056.) Lesh & Lesh and Watkins & Butler, all of Huntington, for appellant. George M. Eberhart, of Huntington, J. Fred France, of Indi (Appellate Court of Indiana, Division No. 2. anapolis, and Barrett & Morris, of Ft. Wayne, for appellee. Oct. 31, 1913.) 1. RAILROADS (§ 381*)-INJURIES TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE. Where a man stepped in front of an interurban car moving at the rate of 35 miles per hour to signal it to stop at a flag station, and, after being pulled from the track, stepped back on again, although he could have given the signal equally well from the side of the track, his conduct was gross negligence, which contributed directly to his death, and his administratrix cannot recover, unless the motorman was guilty of negligence after he saw the peril of the other, or the injury was willfully inflicted. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1285-1293; Dec. Dig. § 381.*] 2. RAILROADS (§ 390*)-INJURIES TO PERSON ON TRACK-LAST CLEAR CHANCE. Where he remained in his position on the track after he could see that the motorman either had not observed him or was disregarding his signals, and he had ample time to leave the track in safety after he knew that the motorman could not stop the car, he, and not the motorman, had the last clear chance to avoid the accident. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.*] 3. APPEAL AND ERROR (§ 1070*)-HARMLESS ERROR-CONDUCT OF JUDGE. Where the court, upon directing the jury to answer a special interrogatory more specifically, failed to return the general verdict to them. but stated that all he was sending was the special interrogatories, unless they requested something further, which was not done, and the further answer to the special interrogatory could not have changed the general verdict, the IBACH, J. Appellant brought this action against appellee to recover damages for the alleged negligent killing of her husband. The complaint is in three paragraphs, each of which was assailed by a separate demurrer for want of facts. These demurrers were overruled, and issues joined by general denial. The trial resulted in verdict and judgment for appellee. the action of the trial court in overruling The only error assigned calls in question appellant's motion for new trial. This motion contains 24 separate specifications, some of which must be deemed waived on account of appellant's failure to present them, and those which are properly presented we will discuss in their order. Although the sufficiency of the complaint is not questioned, it is important to state that the first paragraph proceeds upon the theory of mere negligence, the second upon what is understood as "the doctrine of the last clear chance," and the third upon the theory of willfulness. [1] Facts found by the jury in answer to interrogatories, in so far as they are pertinent to the questions here involved, may be condensed as follows: Appellant's husband, Christian C. Walda, was killed on September 15, 1909, at Miami Park, one of the stops [Ed. Note.-For other cases, see Appeal and on defendant's interurban railroad in HuntError, Cent. Dig. §§ 4231-4233; Dec. Dig. §ington county. Deceased was run upon while 1070.*] error was harmless. TION. 4. NEGLIGENCE (§ 83*)-LAST CLEAR CHANCE CONTRIBUTORY NEGLIGENCE INTOXICANeither contributory negligence nor voluntary intoxication of the injured person is a defense, if the defendant was negligent in failing to take advantage of the last clear chance to avoid the injury. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] 5. APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR-INSTRUCTIONS-APPELLANT NOT ENTITLED TO RECOVER. Error in instructing the jury that contributory negligence or intoxication of the injured person was a defense to an action based upon the doctrine of last clear chance was harmless, where the answers of the jury to the special interrogatories stated that the motorman could not have stopped the car, after discovering decedent on the track, in time to have avoided striking him. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. 1068.*] Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge. Action by Louise Walda, administratrix, against the Ft. Wayne & Wabash Valley Traction Company. Judgment for the defendant, and plaintiff appeals. Affirmed. he was standing between the rails of defendant's track. The car which killed him was proceeding eastward, with eastward, with the headlight Before the collision occurred, he burning. saw the car moving toward him at a sufficient length of time before being struck to have stepped from the tracks, and thus have avoided the injury. After he first entered upon the track in front of the moving car, a companion pulled him back; but he immediately returned to his former position in front of the approaching car, when the car was within 300 feet of him, at the same time announcing that he would stop the car, or the car would stop him. The station was only a flag station, and Walda could have given a signal for the car to stop, without danger, from either side of defendant's track, as effectively as from a position between the rails. When defendant's motorman first discovered decedent upon the tracks, he was then 300 feet west from the point where the collision occurred, coming eastward at the scheduled rate of speed of 35 miles an hour. A car moving at that rate of speed could not have been stopped within less than 800 feet. The motorman could not have stopped his car in time to have avoided the injury, and he did not willfully and intentionally run becomes quite evident that the doctrine of his car upon decedent. From the foregoing facts so clearly stated by the jury, there is but one reasonable conclusion to be reached, and that is the decedent's conduct constituted the grossest kind of carelessness, and that such negligence contributed directly to his injury and death. It necessarily follows, therefore, that the result of the trial in the court below must be upheld, unless it can be said under all the facts proven that the motorman was guilty of negligence after he knew of decedent's perilous position on the track, or that the injury was inflicted willfully. [2] It is appellant's contention that this is a case for the application of the doctrine of the last clear chance, and that, although it may be admitted that the decedent voluntarily placed himself in a situation of danger in the first instance, and thereby subjected himself to injury, yet he will not be denied a recovery, for the facts show that the motorman in the exercise of due care could have stopped this car, and prevented the injury to decedent, after he discovered his perilous position on the track. The doctrine sought to be invoked by appellant has been fully and ably discussed in the cases of Indianapolis, etc., Co. v. Croly, 96 N. E. 973, and Evansville, etc., Tr. Co. v. Spiegel, 49 Ind. App. 412, 94 N. E. 718, 97 N. E. 949. In the latter case, Judge Lairy, speaking for this court, said: "In a case like this, proof of facts tending to show that decedent approached and entered upon the street car track without taking any precaution for his own safety makes out a pri- | ma facie showing upon the question of negligence, and proof of acts tending to show that, by reason of such negligence, he was placed in a position where he was exposed to the danger of being injured, and where he was actually injured by reason of the defendant's negligence, would make out a prima facie showing that the negligence of the deceased directly and proximately contributed to his injury. Such a showing upon both of these questions would constitute a prima facie case of contributory negligence. The party who has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it." This language is forceful, and is peculiarly applicable to the facts in this case. This same doctrine and the legal principles underlying it have been again fully and ably discussed in the case of Indianapolis T. & T. Co. v. Croly, supra. When that opinion is carefully read, we believe the confusion which has heretofore existed from the too loose employment of language used in discussing the subject of the last clear chance will be removed. In the discussion of the case at bar it is sufficient to say that, when the principles announced in that case are the last clear chance does not apply. It clearly appears from the facts proven that the position voluntarily assumed by Walda was extremely dangerous, which fact he realized. He stood on the track facing the approaching car, and fully realized that either the motorman did not see him, or was giving no heed to the signals by which he was attempting to stop the car. Under such circumstances he is chargeable with the knowledge of the danger which existed in remaining upon the tracks. Regardless of this knowledge, however, he did remain in his perilous position after the motorman was unable to stop his car, and after it was yet within his power to leave the tracks and avoid being injured. The sole and proximate cause of the injury which he received, and which resulted in his death, was his own act. In short, the jury found that he was negligent in exposing himself to danger, that after he was discovered in a dangerous position by appellee's agents it was then impossible for them in the exercise of due care to stop the car before reaching him, but that he had ample opportunity to leave the tracks and prevent the injury before the collision occurred; that is, he himself, and not the motorman, had the last clear chance to avoid the collision. So we conclude that, although the doctrine sought to be applied is a sound and beneficial one, which should be made use of where the facts will warrant, yet, under the facts found, appellee could not be held here under that doctrine. See cases cited in Indiana Union Tr. Co. v. Kraemer (1913) 102 N. E. 141. Even The jury found specifically that the motorman did not willfully and intentionally run over Walda, hence there can be no recovery on the third paragraph of complaint. without this finding, the facts showing that the motorman did all in his power to prevent injuring decedent after his peril was discovered rebut the theory of willful negligence. [3] Appellant also contends that the court erred when he directed the jury to retire and answer more specifically interrogatory 14, and failed to return to them the general verdict which they had returned into court with their answers to interrogatories. While appellant assigns no particular reason and cites us to no authority in support of this contention, we are content to say that the better practice would be in all such cases to return to the jury all papers which had previously been in their possession while deliberating upon the case. Here, however, it is clear that no harm came to appellant by reason of the court's action in this particular, because, when the jury was directed to retire for the purpose alone of making a more specific answer to a single interrogatory, the court made the following statement: "All I am sending with you is the interrogatories, un less you request something further." The Judgment affirmed. +hat no changes were made in the answers to | which the judgment should be reversed; but more than one interrogatory, and the more this is not such a case.” specific answer to that one clearly shows that the general verdict would have remained unchanged. (54 Ind. App. 361) EDWARDS MFG. CO. v. STOOPS. (No. 8,027.) Oct. 29, 1913.) [4] What we have said with reference to the facts as found by the jury makes it unnecessary for us to refer to the instructions at any length. Generally the instructions (Appellate Court of Indiana, Division No. 2. given by the court stated the law with fair accuracy. Instructions 11 and 17 state in effect that, if plaintiff failed to use care and diligence proportionate to the danger, he could not recover under the first or second paragraph of complaint. Instruction 12 told the jury that voluntary intoxication would prevent recovery under the first or second paragraph. The second paragraph proceeded upon the theory of last clear chance. Under that doctrine, neither failure to use care and diligence proportionate to the danger, nor voluntary intoxication, would prevent a recovery, if defendant was negligent in using the last clear chance to avoid the injury. See Indianapolis T. & T. Co. v. Croly, supra. Instruction 7, regarding the doctrine of the last clear chance, was also not an accurate statement of the law. And, as applied to the circumstances of this case, there might be some exception taken to the statement in instruction 2 that mere proof that the car was running at high speed was not proof of negligence. [5] Instructions 11, 17, and 12 are so vitally erroneous that the case would be reversed for their giving, were it not for interrogatory 21, and its answer, in the following words: "After said motorman of said car, alleged to have struck said Walda, first discovered the presence of said Walda on defendant's track, could he have stopped his car in time to have avoided injuring him? No." Plaintiff could not have recovered under the doctrine of the last clear chance, unless the motorman discovered Walda on the track in a place of danger in time to have avoided his injury. Therefore the giving of the erroneous instructions was harmless, since in any event plaintiff could not have recovered under the facts found by the jury. 1. SALES (§ 273*)-IMPLIED WARRANTY-FITNESS FOR PURPOSE INTENDED. Where an article of merchandise is sold by the manufacturer for a definite use or purpose known to the seller, there is an implied warranty that it will be reasonably suitable for the purpose intended. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 772-776; Dec. Dig. § 273.*] 2. SALES (§ 428*)-COUNTERCLAIM FOR BREACH OF WARRANTY. goods are reasonably suitable for the purpose Upon a breach of an implied warranty that for which they are sold, the buyer is not required to return the goods and rescind the contract, but may, when sued for the purchase price, set up a set-off for damages for the breach. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1214-1223; Dec. Dig. § 428.*] 3. SALES (§ 435*) COUNTERCLAIM BREACH OF WARRANTY. FOR In an action for the purchase price of metal shingles, an answer, alleging that they were sold by the manufacturer for the special purpose of being used in the construction of the roof on a particular building, the pitch of which was 412 inches, which fact was known to the seller, that the purchaser had no knowledge of their fitness and suitability for that purpose, and further alleging an implied warranty, specific defects, and unfitness constituting a breach thereof, and damages resulting therefrom, was sufficient as against a demurrer. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1239-1245; Dec. Dig. § 435.*] 4. SALES (§ 32*) - WARRANTY AGREEMENTS CONSTITUTING. An order for metal shingles, marked "Wait notification," a letter written the seller by the buyer asking for an express warranty of the shingles for a particular purpose, and the sellconstrued together as forming one transaction, er's letter in reply warranting them, should be and constituted a definite, written agreement of warranty; and hence, in an action for the purchase price of the shingles, an answer alleging such order and letters, a breach of the warranty, the making of a proper test of the shingles, and damage resulting from the breach, was not demurrable. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 59; Dec. Dig. § 32.*] 5. EVIDENCE (§ 178*)-BEST AND SECONDARY EVIDENCE. Where the contract sued on consisted of an order for goods and letters between the buyer and seller which were conclusively shown to be lost, oral testimony of the contents of such letters was properly admitted. It was said by Elliott, J., in the case of Ricketts v. Harvey, 106 Ind. 564, 6 N. E. 325: "Many decisions affirm that, where it appears from the answers to interrogatories that the appellant could not have been harmed by an instruction, the judgment will not be reversed, although the instruction instruction was wrong. Worley v. Moore, 97 Ind. 15; Stockton v. Stockton, 73 Ind. 510; Ferguson v. Hosier, 58 Ind. 438. The defense which the answer to the interrogatory reveals renders a recovery by the plaintiff legally impossible. Cent. Dig. 88 580-594; Dec. Dig. § 178.*] [Ed. Note. For other cases, see Evidence, It cuts up his cause of action 'root and branch.' There may be cases where an in- 6. APPEAL AND ERROR (§ 1003*)-REVIEWQUESTIONS OF FACT. struction brings about or tends to bring Where there is some evidence supporting about a wrong answer to an interrogatory in a verdict, though there is also some evidence to * * * the contrary, an Appellate Court will not weigh [ 12. SALES (§ 442*)-BREACH OF WARRANTY— the evidence. DAMAGES. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. 1003.*] 7. TRIAL (8 234*)-INSTRUCTIONS-COUNTER CLAIM. An instruction that defendant, to prevail on his alleged matter of set-off or some part thereof, must prove it by a fair preponderance of the evidence did not authorize a recovery upon proof of part of the essential allegations of the set-off, but only authorized a recovery of all of the damage charged, or some part thereof, if proved by a fair preponderance of the evidence. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. § 234.*] 8. TRIAL (§ 296*) - INSTRUCTIONS-CURE BY OTHER INSTRUCTIONS. In an action for the price of goods sold, in which defendant counterclaimed in two paragraphs for breach of an implied, and of an express, warranty, an instruction that there were two kinds of warranty in relation to sales of personal property, followed by a definition only of an express warranty, was not harmful to plaintiff, where in the following instruction the court defined the conditions and circumstances which would create an implied warranty. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 705-713, 715, 716, 718; Dec. Dig. 296.*] 9. TRIAL (8 256*)-INSTRUCTIONS-NECESSITY OF REQUESTS. Where instructions were not erroneous if a party desired further instructions on that branch of the case, they should have been requested. FOR [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*] 10. SALES (8 446*) COUNTERCLAIMS BREACH OF WARRANTY-INSTRUCTIONS. In an action for the purchase price of metal shingles, in which defendant counterclaimed for damages from the breach of an alleged implied warranty, where the evidence showed that such shingles had not been in general use and had not been manufactured many years, an instruction that where a new appliance or device was sold for a certain and specified purpose and the purchaser was not acquainted with or did not possess knowledge of the fitness of such article, appliance, or device for the purpose for which it was purchased, there was an implied warranty that it was reasonably suited to the purpose for which it was sold to be used was germane to the evidence, and could not have harmed plaintiff. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1309-1317; Dec. Dig. § 446.*] 11. SALES (8 446*) COUNTERCLAIMS FOR BREACH OF WARRANTY-INSTRUCTIONS. In an action for the purchase price of shingles, in which defendant counterclaimed for the breach of a warranty that the shingles were suitable for the purpose for which they were intended, an instruction that, if the seller warranted the shingles either by an express or implied warranty, such warranty would be deemed to apply to and have reference to the pitch and angle of the roof for which they were purchased and used, if the seller's agent who obtained the order therefor was informed by the buyer of such pitch and angle, and that the shingles were to be used on such roof, was not prejudicial to the seller, where it was germane to the evidence. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1309-1317; Dec. Dig. § 446.*] Where metal shingles were warranted fit for use on a certain building, which warranty failed, an effort was made to repair the roof and thus make use of the shingles, but it was found necessary to remove them and supply another roof, the measure of damages was the cost of the metal shingle roof, including the cost of the shingles and the expense of putting them on, less their value after removal from the roof, to which should be added any reasonable expense incurred in attempting to repair and improve the roof so as to make it conform to the warranty, since it was the buyer's duty to minimize the damage as far as possible, and where things are sold for a particular use, damages for a breach of warranty are not confined to the difference of the value of the goods as they were and as they would have been if as warranted, but include all such consequential damages as are the direct, immediate and probable result of the breach. Dig. 88 1284-1301; Dec. Dig. § 442.*] · [Ed. Note.-For other cases, see Sales, Cent. Appeal from Circuit Court, Fayette County; George L. Gray, Judge. Action by the Edwards Manufacturing Company against Thomas H. Stoops. From a judgment for defendant, plaintiff appeals. Affirmed. Instruction No. 4 was as follows: "The defendant, to prevail on his alleged matter of set-off, or some part thereof, must prove the same by a fair preponderance of the evidence." Plaintiff urged that this did not require proof by a fair preponderance of the evidence of all the material allegations of the set-off, but authorized a verdict for defendant if he had proved any part of the matter alleged in the set-off, as for example, that he bought the shingles involved from plaintiff, put them on the roof, and took them off. Instructions Nos. 6 and 7 were as follows: "No. 6. Where a new appliance or device is sold by the seller to the purchaser for a certain and specified purpose, and the purchaser is not acquainted with, or does not possess a knowledge of the fitness of such article, appliance, or device, for the purpose for which purchased, the law creates an implied warranty that such article, appliance, or device is reasonably suited to the purpose for which it is sold to be used. "No. 7. If you find that the plaintiff warranted the metal shingles in controversy, as alleged, either by express or implied warranty, such warranty will be deemed to have applied to and had reference to the pitch and angle of the roof for which said shingles were purchased and used, if you find that the agent of the Edwards Manufacturing Company, who obtained the order for said metal shingles, was informed by the defendant of such pitch and angle of roof, and said metal shingles were to be used on said roof." G. E. Johnston, of Connersville, for appellant. Florea & Broaddus, of Connersville, for appellee. ranty of the shingles, the specific defects and unfitness constituting the breach of the warranty, and the damages resulting therefrom, we think make this paragraph sufficient to withstand demurrer. [4] As to the second paragraph of the answer, based upon an express warranty in writing, it is sufficient to say that the writing in the following words and figures: "Order No. IBACH, J. Appellant, the Edwards Manu- | remaining averments relating to the warfacturing Company, manufacturer of metal shingles, commenced this action before a justice of the peace on an account for a quantity of such shingles sold and delivered by it to defendant. The trial in that court resulted in a judgment for defendant. An appeal to the Fayette circuit court followed, where defendant filed an amended answer of set-off in two paragraphs. A separate demurrer to each paragraph of the answer was overruled. Upon the issues formed there was a trial by jury, resulting in a verdict for defendant, plaintiff's motion for new trial was overruled, and judgment was rendered on the verdict. The errors assigned for reversal and argued are overruling the demurrers to the first and second paragraphs of the answer, and the refusal to grant a new trial. The first paragraph of the answer was drawn upon the theory that the shingles were sold to appellee on an implied warranty that they were reasonably fit and suitable for the particular purpose for which they were to be used-that is, for the construction of a roof of a particular kind-and that the shingles proved worthless, and appellee was damaged more than their cost. The second paragraph is substantially the same as the first, except that it relies on the execution of a written guaranty. [1, 2] The first question is, do the facts averred in the first paragraph of the answer show an implied warranty of fitness accompanying the sale of the shingles? It is settled law that when an article of merchandise is to be supplied to a purchaser thereof by the manufacturer for a definite use or purpose, and that particular use is known to the seller, there is an implied warranty that it will be reasonably suitable for the purpose intended by the purchaser. Benjamin on Sales (7th Ed.) §§ 683, 686; Oil Well Supply Co. v. Watson, 168 Ind. 605–608, 80 N. E. 157, 15 L. R. A. (N. S.) 868; Poland v. Miller, 95 Ind. 387, 48 Am. Rep. 730; Zimmerman v. Druecker, 15 Ind. App. 513, 514, 44 N. E. 557. And in such cases the purchaser is not required to return the goods purchased and rescind the contract when the breach of the warranty is discovered, but he may, when sued for the purchase price, set up his damages in his answer, as was done in this action. A. D. Baker Co. v. Cornelius, 47 Ind. App. 1, 93 N. E. 687, 688, and cases there cited; Glucose Sugar Refining Co. v. Climax Coffee, etc., Co. 40 Ind. App. 182-184, 81 N. E. 589, and cases there cited. [3] It is averred in the first paragraph of the answer, in substance, that the shingles in question were sold by the manufacturer for the special purpose of being used in the construction of the roof on the building in question, the pitch of which was 42 inches, which fact was known to the seller, and the purchaser had no knowledge of the fitness and suitability of the shingles for that par But Date Nov. 8, 1906. The Edwards Manufacturing Company. Ship to Thos. H. Stoops at Connersville, Ind. (description of shingles and quality). Ship by Big 4. When, Dec. 1, but wait notification. Thos. H. Stoops"-is in itself an incomplete and uncertain memorandum or order. when it is coupled with the allegation that the order was marked "Wait notification," with the intent and purpose to make it conditional on the giving by appellant of an express warranty, and with appellee's letter to appellant relating to the order, and asking for an express warranty of the goods referred to therein for the particular purpose for which they were intended, and appellant's letter in reply warranting them, all of which must be construed together as forming one transaction, we have a complete and definite written agreement between the parties; and in these averments, together with the further ones showing the breach of the warranty, the making of the proper test, and the damage resulting from such breach, we have all the averments essential to an answer on the theory on which it was drawn. Thames Loan & Trust Co. v. Boville, 100 Ind. 309, 313. [5] The insistence of appellant that the court erred in permitting witnesses to testify as to the contents of the two letters which were conclusively shown to have been lost cannot be sustained. The original order in its uncertain condition, and the letters written by the respective parties in explanation thereof, formed the entire contract, and, the originals having been lost, their contents were properly shown by oral testimony. That there was no error in this is too plain to require further discussion or citation of authorities. [6] There is also some evidence tending to show that appellee was damaged by reason of the breach of warranty complained of, and that such damages exceeded the cost of the shingles in question. There is also some evidence tending to prove the contrary, but since there is some legal evidence supporting the verdict, it is not for this court to weigh the same, and we are bound to hold this branch of the case, for the purposes of this appeal, has been fully established by the verdict of the jury. Appellant next contends and argues in its brief that the court erred in submitting of its own motion to the jury instructions 4 to 7, inclusive, and in giving instruction 2 ten |