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to be corrected, and the remedy provided." And so, in the case of State v. Canton, 43 Mo. 48, it was said: "It is an established rule, applicable to the construction of all remedial statutes, that cases within the reason, though not within the letter, of a statute, shall be embraced by its provisions; and cases not within the reason, though within the letter, shall not be taken to be within the statute." See, also, the case of Middleton v. Greeson, 106 Ind. 18; S. C. 5 N. E. Rep. 755, and the numerous cases there cited; Stout v. Board, etc., 8 N. E. Rep. 222, (present term;) Miller v. State, 106 Ind. 415; S. C. 7 N. E. Rep. 209; Storm v. Stevens, 104 Ind. 46; S. C. 3 N. E. Rep. 401. Keeping in view the well-settled rules of construction as announced in the foregoing cases, must we determine that it was the intention of the legislature, by the act of 1885, to overthrow that portion of the special charter of Evansville which gives discretion to the common council to pay out of the city treasury one-third of the cost of street improvements?
Section 69 of the general law for the incorporation of cities, as enacted in 1867, provided that, in the improvement of streets, the city should be liable to the contractor for so much of the improvement only as was occupied by public grounds of the city bordering thereon, and the crossings of streets and alleys, and that the owners of lots bordering on such streets and alleys, or the part thereof to be improved, should be liable to the contractors for their proportion of the costs, in the ratio of the first line of the lots owned by them to the whole improved line. 1 Rev. St. 1876, p. 303. Under that section a lot could not be assessed unless it abutted upon the street, although but a narrow strip of land might separate it from the street. That section was amended in 1881, so that the assessments might be extended upon lots and land back to the distance of 50 feet from the front line, whether such ground should be subdivided by platting or conveyance, or in any other manner, etc. Acts 1881, p. 392; Rev. St. 1881, § 3163.
The above act of 1885, although it does not purport upon its face to be an amendment of the above section 69, as amended in 1881, covers and embraces the same subject-matter, enlarges the authority, so that lots and unplatted lands may be assessed back to the distance of 150 feet from the front line, and provides a mode of collection by suit, etc. Section 69, above, the amendment thereof in 1881, and the act of 1885, each and all fix a limit to the liability of the city to the contractor, but neither of them fixes, or attempts to fix, a limit upon the authority of the common council of the city to pay for a part of the improvements out of the general funds of the city, if in the judgment of the common council such payment is advisable.
Section 70 of the general law for the incorporation of cities (1 Rev. St. 1876, p. 304) authorizes the common council, if they deem it just and right, to pay a part or the whole of the cost of street improvements out of the general revenue of the city. That section, conferring authority to pay for street improvements out of the general revenue, is in no way affected by the act of 1885, which limits the liability of the city for such improvements. As the law now stands, therefore, cities incorporated under the general law are liable to a limited extent, but have authority to pay out of the general revenue to the extent of the entire cost of street improvements. In these regards, they occupy the same position which they did before the passage of the act of 1885. And thus, while the act of 1885 does not purport to be an amendment of the amended section 69, it subserves the same purpose. It was evidently intended to take the place of that section. The above amended section 58 of the charter of Evansville also fixes a limit to the liability of the city to contractors for street improvements. Under that section the city may assess the cost of the improvements upon the abutting lots, and is not liable for the amount so assessed. The contractor takes the assessments in lieu of so much money, and may collect them by the sale of the lots, upon proper notice, in the mode provided, or by an action to enforce the lien, etc. And what is provided by
section 70 of the general law for the incorporation of cities, in the way of authority to pay for street improvements out of the general revenues, is provided for the city of Evansville in the above proviso in section 58 of its charter. And thus both the cities incorporated under the general law and the city of Evansville, under the above section of its charter, have authority to pay for street improvements out of the general revenues of the city; the only difference being that the one class may thus pay the whole of the cost, while Evansville may not so pay to exceed the one-half of the cost of such improvements. To hold that the above act of 1885 so repealed the whole of the aboveamended section 58 of the Evansville charter as to take from that city the right to pay a part of the cost of street improvements out of the general revenues, would be to place that city upon narrower grounds than occupied by cities incorporated under the general law.
In our judgment, the act of 1885 was not intended to so apply to the city of Evansville as to take from it the authority to pay a part of the cost of street improvements out of the general revenue of the city. It does not purport to be a repeal of any portion of the Evansville charter; and, if it should be held that it in any way applies to that city, it would not follow that it would repeal that portion of the amended section 58 of its charter which gives the city authority to pay a part of the cost of street improvements out of the general revenue. It did not destroy the authority of other cities to so pay out of the general revenue, nor did it destroy the like authority of the city of Evansville. If it should be held to apply to that city, and to any extent repeal the amended section 58 of its charter, the repeal would be such only as results by implication. Such repeals are not favorites of the law, and will take place only to the extent that the new law is in irreconcilable conflict with the prior law. Spencer v. State, 5 Ind. 41; Blain v. Bailey, 25 Ind. 165; Coghill v. State, 37 Ind. 111; Water-works Co., etc., v. Burkhart, 41 Ind. 380.
As we have said, the act of 1885 continues the limitation upon the liability of cities, and enlarges the power of assessing for street improvements, but it in no way limits, or undertakes to limit, the authority of cities to pay for street improvements out of the general revenues of the city. There is nothing in the act at all directly or indirectly in conflict with that portion of the amended section 58 of the Evansville charter which authorizes the city to pay a part of the cost of street improvements out of the general revenues of the city.
Our judgment upon the whole case is that the act of 1885 was not intended to and did not repeal or affect the amended section 58 of the Evansville charter, and that, therefore, the court below erred in overruling appellant's demurrer to appellee's complaint. Judgment reversed at appellee's cost, and cause remanded, with instructions to the court below to sustain the demurrer to the complaint.
(108 Ind. 208)
MEYER and others v. FRONNER and others.
(Supreme Court of Indiana. November 16, 1886.)
MUNICIPAL CORPORATIONS-TOWNS-ORDER ESTABLISHING GRADE OF STREET MUST BE PUBLISHED.
A general regulation of an incorporated town, establishing the grade of the streets of the town, must be published as required by section 3333, Rev. St. Ind., or there must be a declaration of an emergency; otherwise the regulation will be ineffective.
Appeal from Dubois circuit court.
John E. McCullough, J. H. Miller, and O. A. Trippett, for appellants. Ely & Wilson, for appellee.
ELLIOTT, J. On the second day of June, 1884, the trustees of the town of Huntingburgh employed a competent engineer to establish the grades of the streets of the town, and during the same month they approved and adopted the grades fixed by the engineer. On the twenty-fourth day of that month a petition was filed praying for the improvement of Fifth street, and that "it be brought to the grade established by the board of trustees at its session of June 18, 1884." Notice was given, contract awarded, and the work of improving the street was done under the contract. "The order establishing the grade contained no emergency clause declaring the same in force from and after its passage, and no notice was given of its adoption, by publication or otherwise." The appellees are the owners of land abutting on Fifth street, and were injured by the excavation of the street, made in the course of the improvement, in the amount of $200. The facts of which we have given a synopsis are set forth in detail in the special finding, and upon them the court stated this conclusion of law: "The order adopting the grade of Fifth street not containing an emergency clause, and no notice thereof having been given, is not sufficient to establish said grade according to law; and that hence the grading and excavation were illegal, and the plaintiff Anna is entitled to recover from the said defendants the sum of two hundred dollars."
We think the court's conclusion was right. The statute contains this provision: "But every by-law, ordinance, or regulation, unless in a case of emergency, shall be published in a newspaper in such town, if one be printed therein, or posted in five public places, at least ten days before the same shall take effect." Rev. St. § 3333, subsec. 16. The order fixing the grade of the corporate street is certainly embraced within the language of the statute, for it is not a mere order made in transacting ordinary business, but is an important regulation, general in its character, and affecting many citizens, (Mattingly v. City, 100 Ind. 545;) and, as the language of the statute is imperative, the order never became effective. As there was no order fixing the grade of the street, the acts of the contractors were without authority of law, and they are liable for all injuries done the appellee's property. The case of City of Aurora v. Fox, 78 Ind. 1, is not in point, for the question there was very different from that here presented. The question there decided was not as to the liability of contractors where there was no established grade, but as to their liability where there was some omission or defect in advertising for proposals, and in awarding the contract. Nor do the cases of Mattingly v. City of Terre Haute, 100 Ind. 545; City v. Turner, 36 Ind. 522, apply; for the question here is not whether a municipal corporation may establish the grade of a street by an order or resolution, but the question is, can it be done by any measure not brought into effect by publication? An order establishing the grade of a street, if not a by-law, is, at least, a "regulation," and to regulations the language of the statute expressly applies.
The only question which the record presents is as to the correctness of the conclusion of law, and, as that is adjudged to be right, the judgment must stand. Judgment affirmed.
(110 Ind. 156)
WABASH RY. Co. v. SAVAGE.1
(Supreme Court of Indiana. October 29, 1886.)
1. PLEADING-MAKING CERTAIN-RAILROAD COMPANY-ACTION FOR DAMAGES. Where, in an action against a railroad company for damages for an injury mallciously inflicted, the manner and occasion of the injury are specifically set forth, it is not error to overrule a motion to make the complaint more specific by stating by what servant of the company the injury was inflicted, and at what time of day, and on what kind of a train, it occurred.
1 Rehearing denied.
2. MASTER AND SERVANT-LIABILITY FOR ACTS OF SERVANT-PLEADING.
While, as a general rule, a master is liable for the negligence of his servants only when they are acting within the line of their duty, yet an allegation in the complaint that the "defendant, by its agents and servants," caused the injury to the plaintiff, is sufficient.1
3. TRIAL-SPECIAL INTERROGATORIES-GENERAL VERDICT.
When answers to interrogatories are conflicting, the general verdict will control. 4. CARRIERS-OF PASSENGERS-LIABLE FOR INJURY WANTONLY INFLICTED BY BRAKEMAN. A railway company is liable for an injury wantonly inflicted by its brakeman upon a passenger traveling on one of its trains.
5. SAME EVIDENCE OF PERMANENT INJURY.
In an action against a railway company to recover damages for personal injury inflicted by its servant, evidence of permanent injury is admissible under an allegation in the complaint that the plaintiff had "thereby become wholly crippled and maimed, and prevented from actively pursuing his business for life."
Appeal from Whitley circuit court.
Action in damages for personal injury.
Chas. B. Stuart and W. V. Stuart, for appellant.
The motion to make the complaint more specific should have been sustained. Cincinnati, H. & D. R. R. v. Chester, 57 Ind. 297; Barnett v. Leonard, 66 Ind. 422; Brookville Turnpike Co. v. Pumphrey, 59 Ind. 78. See, also, Pennsylvania Co. v. Sedwick, 59 Ind. 336; and more particularly the very recent decisions of this court in Hawley v. Williams, 90 Ind. 160, (No. 10,287, decided September 22, 1883,) and Pennsylvania Co. v. Dean, 92 Ind. 459, (No. 10,755, decided January 5, 1884.)
The verdict is contrary to the evidence, not merely to the weight of evidence, but is absolutely unsustained by the evidence. For this there should be a reversal. Lindsay v. Central R. Co., 46 Ga. 447; S. C. 11 Amer. Ry. Rep. 415. In Toledo & W. Ry. v. Goddard, 25 Ind. 185, 195, this court said: "But, when the evidence in support of the finding is clearly and overwhelmingly or conclusively contradicted, it would be a reproach to the law, and a flagrant outrage upon the rights of parties, to refuse to disturb the verdict simply because it had been found by a jury." In Goodwin v. Blachley, 4 Ind. 438, it is held that, unless the evidence is sufficient to support the verdict, it will be set aside. See, also, Evansville & C. R. R. v. Baum, 26 Ind. 70; Martin v. State, 28 Ind. 310; Jeffersonville, M. & I. R, R. v. Bowen, 49 Ind. 154; Davis v. Grater, 62 Ind. 408; Indianapolis & V. R. R. v. McClaren, Id. 566; Davis v. Hamilton, 71 Ind. 135; Thomas v. Patton, Id. 241.
The court erred in allowing appellee to show permanent injury and suffering. The complaint does not allege any permanent injury or suffering, and damages are not asked on that account.
The verdict is contrary to law. It is not alleged in the complaint, nor is it shown by the evidence, that the brakeman in this case was acting under orders from the company, or from the conductor, or that he was acting for the company, or in the scope of his employment. The law, therefore, relieves the company from liability for any willful act on his part. Marion v. Chicago, R. I. & P. R. Co., 59 Iowa, 428; S. C. 13 N. W. Rep. 415; Towanda Coal Co. v. Heeman, 86 Pa. St. 418; Sherman v. Hannibal & St. J. R. R., 72 Mo. 62; Everhart v. Terre Haute & I. R. R., 78 Ind. 292; Pennsylvania Co. v. Toomey, 91 Pa. St. 256; Little Miami R. R. v. Wetmore, 19 Ohio St. 110; Isaacs v. Third Ave. R. R., 47 N. Y. 122; Moore v. Sanborne, 2 Mich. 520; Puryear v. Thompson, 5 Humph. 396; Wood, Mast. & Serv. § 309; Shear. & R. Neg. § 63. And see McManus v. Crickett, 1 East, 106; Croft v. Alison,
1See Com. v. Briant, (Mass.) 8 N. E. Rep. 339, and note; Pike v. Brittan, (Cal.) 11 Pac. Rep. 890, and note; Curtis v. Dinneen, (Dak.) 30 N. W. Rep. 148, and note.
4 Barn. & Ald. 590; McKenzie v. McLeod, 10 Bing. 385; Wright v. Wilcox, 19 Wend. 343; Rounds v. Delaware, L. & W. R. R., 64 N. Y. 129, 136; Jackson v. Second Ave. R. R., 47 N. Y. 274; Mali v. Lord, 39 N. Y. 381; Allegheny V. R. Co. v. McLain, 91 Pa. St. 442; Passenger Ry. v. Donahue, 70 Pa. St. 119; Flower v. Pennsylvania R. Co., 69 Pa. St. 210; Snyder v. Hannibal & St. J. R. R., 60 Mo. 413; McKeon v. Citizens' R. R., 42 Mo. 79; Steele v. Smith, 3 E. D. Smith, 321; Kerns v. Piper, 4 Watts, 222; Hughes v. New York & N. H. R. R., 4 Jones & S. 222; Great Western R. R. v. Miller, 19 Mich. 305; Thames S. Co. v. Housatonic R. Co., 24 Conn. 40; Aycrigg v. New York & E. R. R., 30 N. J. Law, 460; Church v. Mansfield, 20 Conn. 284; Campbell v. City of Providence, 9 R. I. 262; Golden v. Newbrand, 52 Iowa, 59; S. C. 2 N. W. Rep. 537; Turner v. North Beach & M. R. R., 34 Cal. 594; Gordon v. Rolt, 4 Exch. 365; Lamb v. Palk, 9 Car. & P. 629.
P. A. Randall and L. M. Ninde, for appellee.
Was it necessary to make the complaint more specific? The complaint alleges that plaintiff was admitted as a passenger on a train, westward bound from the city of Fort Wayne, on October 15, 1878, and was carried by said train 10 miles from the city, and on a dark night, away from the station, and in a swamp, the defendant, by its agents and servants, without stopping the train, struck and pushed plaintiff from the car, by reason of which he received the injuries complained of. This, according to the authority of our supreme court, would be a sufficiently specific allegation of negligence; for it is sufficient to plead negligence generally, describing the particular act relied on, without pleading the evidence. See 1 Work, Pr. § 400, and authorities there cited.
A review of the evidence shows that it sustains the verdict.
The evidence of permanent injury was properly admitted under the complaint. Pittsburgh, etc., Ry. Co. v. Sponier, 85 Ind. 165; Wright v. Compton, 53 Ind. 341.
The verdict is not contrary to law. Where a railroad company undertakes to carry one as a passenger, even without compensation, it must protect such passenger from the negligence and willful misconduct of its servants on the train. Chicago & E. R. R. v. Flexman, 103 Ill. 546; Philadelphia & R. R. Co. v. Derby, 14 How. 468; Columbus, C. & I.C. R. Co. v. Powell, 40 Ind. 37. To the same effect are the following cases: Gillenwater v. Madison & I. R. Co., 5 Ind. 339; Fitzpatrick v. New Albany & S. R. Co., 7 Ind. 439; Lemon v. Chanslor, 68 Mo. 340; Nolton v. Western R. Co., 15 N. Y. 444; Bissell v. Michigan Southern, etc., R. Co., 22 N. Y. 307; Edgerton v. New York & H. R. R., 39 N. Y. 227.
It being settled that plaintiff was a passenger, the liability of the company for the willful act of its brakeman is clear. Goddard v. Grand Trunk Ry., 57 Me. 202; Ang. & A. Corp. (8th Ed.) 404; Wood, Mast. & Serv. 321; Bryant v. Rich, 106 Mass. 180; Chamberlain v. Chandler, 3 Mason, 242; Lake Erie & W. Ry. Co. v. Fix, 88 Ind. 381. And see, also, Craker v. Chicago & N.W. R. Co., 36 Wis. 657; Railroad Co. v. Finney, 10 Wis. 388; Moore v. Railroad Co., 4 Gray, 465; Brand v. Railroad Co., 8 Barb. 368; Seymour v. Greenwood, 7 Hurl. & N. 356; Railroad Co. v. Vandiver, 42 Pa. St. 365; Railway Co. v. Hinds, 53 Pa. St. 512.
The authorities cited by appellant are, with two or three exceptions, cases of trespassers, to whom the railroad company owed no contract duty.
NIBLACK, J. This action was commenced in the superior court of Allen county, by Thomas S. Savage against the Wabash Railway Company, for damages for alleged personal injuries, where there was a trial and a verdict for the plaintiff. A new trial having been granted, a change of venue was ordered to the Whitley circuit court, where a second trial resulted in a verdict for the plaintiff, assessing his damages at $2,981.76. This verdict was ac