The question raised by the demurrer is not discussed by counsel for appellant, curred? A. Charles. (14) Is not Elliott proved street? A. Yes. (15) Did not the defendant company stop the train at that street, and take aboard passengers, and was not that train the same train that collided afterwards, on the same trip, with plaintiff's property? A. Yes. (16) At what spred was the defendant's train running at and before it collided with plaintiff's property? A. From four to six miles an hour. (17) What noise, if any, did defendant's train or engine make as it approached Kilgore avenue, where plaintiff was? A. Rumbling noise. (18) Was not the plaintiff warned and notified of the approaching train of defendant when the train was about 200 feet or more from necessary for us to consider the same. him? A. Yes. (19) Could not the plain-flicting that both cannot stand, and tiff have driven through the open ground east from the railroad track on Kilgore avenue, and thereby escaped a collision with the cars? A. Yes; if his team had not been frightened and thereby become uncontrollable. (20) Was not the plaintiff's horse that was injured and died afraid of steam engines and cars, and did not the plaintiff know that fact before the injury occurred? A. To some extent, would throw up its head and squat at the approach of engine or cars." "(24) At what time in the day did the collision be. tween defendant's train and plaintiff's property occur? A. Between three and four o'clock P. M. (25) What was the character of the day, as to its being fair or otherwise? A. Fair. (26) At what distance could the noise produced by defendant's train be heard, at the time and place of the collision? A. Not over one squarefrom point of collision.""(30) What damage do you assess in yourgeneral verdiet against the defendant companyforin Juries done to plaintiff's horse, that is yet living, and for what injuries to such horse do you assess such damages? A. Fifteen dollars for injuries sustained by fright. (31) What injury was done to plaintiff's horse, which he was driving to his car the record must show this conflict be- Among other reasons stated in appellant's motion for a new trial is the ruling of the court on certain questions of evidence, but counsel fail to discuss the questions thus raised, but simply call our attention to them, and ask that they be considered by this court. The rule, as often stated, is that errors assigned, and rlage on the day of thecollision and which | not argued, are waived, (Tracewell v. Peacock, 55 Ind.572; Griffin v. Pate, 63 Ind. horse is yet living? State particularly the injury done, and whether the same was done by defendant company. A. Fifteen doilars for injuries sustained by being frightened by engine and car approaching on defendant's street-car line. (32) What damages do you assess for injuries done to plaintiff's carriage? A. Fifteen dollars. (33) What damages do you assess against the defendant company for injuries done to the plaintiff's harness? A. Eight dollars." Appellant also complains on account of the court's refusal to submit to the jury interrogatories numbered 21, 22, 23, 27, 28, and 29, which were prepared by appellant and furnished to the court. Each of said interrogatories is framed upon the theory that if appellee could have traveled some other street than Kilgore avenue, and thus have avoided meeting said cars, it was his duty to have done so, and his failure to do so was negligence that would prevent him from recovering in this action. The court properly refused to submit said interrogatories to the jury. The appellee had a right to travel upon Kilgore avenue, and the fact that the appellant's railroad The defendant moved the court for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict, and also filed a motion for a new trial. Each of said motions was overruled, and judgment given for the plaintiff on the general verdict in the sum of $190 and costs. The appellant appeals, and assigns as errors: (1) The overrul ing of the demurrer to the complaint. (2) The overruling of the motion for judgment | track was located thereon did not make on the answers to the interrogatories not withstanding the general verdict. (3) The overruling of the motion for a new trial. it necessary for him to avoid using said to show great fear; and finally, when the engine was within 30 or 35 feet of them, they swung violently to the left, onto said track, facing west, and continued to turn until they faced south onsaid track, where the near horse fell by the side of the track, with one of its hind legs across the east rail, the other animal falling over the prostrate horse, breaking some parts of the carriage and harness, and while in this position the engine ran onto said animal, so injuring it that it died in a few days. The engineer could and did see the horses when he was 150 feet away. Hetestified that healways a public thoroughfare, and generally used by the traveling public. If the appellee should have traveled some other or differ. ent street, in order that he might avoid meeting appellant's cars, it would follow that all persons should for the same reason avoid using said avenue, and thus give to said street-car company the exclusive use of the same. If a person was driving a horse that he knew or had reason to believe would, at the sight of the engine and cars, become frightened and unmanageable, then he would be guilty of negligence, if he did not use reasonable precautions to avoid the same. The ap-looked down the avenue when he started around the curve, and did so on this occasion; that when he first saw the horses they were standing perfectly quiet, facing east, with therearend of thecarriage within 5 or 6 feet of the track, and he thought he could pass them, and tried to do so. The fireman testified that hesaw the team as the engine came along down Charles street. The evidence, taken as a whole, clearly shows that from the moment the horses first noticed said engine they were frightened, and by their actions showed they could not be managed by appellee. They at one timeduring their fright backed the carriage so close to the track, and in such a position, that the front wheels were upon the track, when the engine was 75 feet away. The engine was equipped with a steam brake called a "vacuum brake," by the means of which the train could be stopped in traveling a distance of 10 feet. The evidenceshows that theappellee hallooed and waved his hand to those in charge of the engine to stop the train after he saw he could not manage his team, but to no avail, as they came on until finally the injury occurred. We think the evidence shows that the engineer could have seen the helpless condition of appellee in time to have stopped his train and have avoided the injury. It was his duty to be constantly on the alert, and, if he discovered appellee's property so situated that injury must follow unless he stop his engine, it was his duty to make all reasonable effort to do so. Those in charge of an engine upon a street-car track are not required or under obligations to immediately stop the engine upon seeing a horse or team by the side of the track that is manifesting fright, unless the situation and all the circumstances would cause a reasonable man to see and believe that damage to the property could not otherwise be avoid. ed. In the case of Cornell v. Railway Co., 46 N. W. Rep. 791, decided by the supreme court of Michigan, in discussing the legal duties of those in charge of a street-railway train, on discovering a horse near thetrack manifesting fright, it is held that the servants in charge of an electric car are not bound to immediately stop the train when they see a horse near the track 300 or 400 feet away, showing signs of fright, but if they slacken their speed, and finally stop before reaching the point where said animal is, they have discharged their pellee had frequently had his said horses close to steam engines, in fact, within 10 feet of them,—and neither of said animals showed any great amount of fright, and on some occasions paid no attention to the cars whatever. The evidence in this case discloses the following facts: The appellant was, on the 23d day of November, 1890, the owner of and operating a street railway in the city of Muncie, Ind., the same being located on Kilgore avenue and Charles street, near the center thereof, and on a level with the surface of said avenue andstreet. Said avenueandstreet were public thoroughfares, and used by the public as such. Kilgore avenue runs in a northeasterly and southwesterly direction, and Charles street runs east and west, intersecting, but not crossing, said avenue. The connection of said railway line where said street intersects said avenue is by means of a curve to the south from said street. There are houses located on Charles street fronting north and south of said junction that obstruct the view along said street of a person traveling north on said avenue towards said junction. Said railway company operates its cars by steam engines, called "motors." On the day above named the appellee, with his wife, his sister-in-law, and his child, were driving in his family carriage, drawn by two large horses, along said avenue on the east side of said railway track, in a northerly direction, towards said junction at Charles street. It was on Sunday afternoon, about 3 o'clock. Appellee knew that said street-car line was located on said avenue and street, and that the same was connected by means of a curve to the south from said street, but he did not know that the cars were operated on Sunday. When he had reached a point on said avenue about 50 feet south of Charles street, he was notified by a man ramed Cropper that the street car was coming west on said street. At that time the car was about 200 feet away, moving along towards the junction or curve at the rate of from 4 to 6 miles an hour. Almost instantaneously with said notification appellee's horses noticed said engine and car, and became frightened, commencing to lunge and back from first one side to the other. Appellee at once tried to turn them and drive east from said avenue into a vacant lot, but on account of their fright they were uncontrollable, and ap-duty. We agree with the rule thus laid pellee was utterly unable to manage them. As the engine and car approached and came nearer to the horses, they continued down, but it is very clear from the opinion that the servants of the company in charge of the train must, upon seeing the frightened animal, heed the danger, slacken the speed, and, if necessary to avoid the injury, stop the train. Appellant complains on account of the court's refusal to give instructions numbered 2, 3, 6, and 7, prepared and delivered to the court at the proper time. The court did not err in refusing to give these instructions. We will not set them out, as a statement of the substance or point made in them will answer the purpose. It was asked in instruction No. 2 to charge the jury that, if the plaintiff could have seen the car approaching and he did not escape, but his property was injured, it is presumed by the law either that he did not look, or, if he did look, that he did not heed what he saw, and that such conduct was negligence in itself. The evidence clearly shows that the plaintiff made every effort to avoid the collision, but, on account of the frightened condition of his horses, could not control them, and, in view of this evidence, said instruction was properly refused. Instruction No. 3 asked that the jury be charged that it was the duty of the traveler to use the same degree of care required of one approaching and about to cross an ordinary railroad crossing, and that the question of care at railway crossings is no longer, as a rule, a question for the jury. The quantum of care is exactly prescribed as matter of law, and that the traveler must listen for signals, etc. The plaintiff in this case was not injured at a railway crossing, and was not attempting to cross said company's track at the time of said injury. The same rule applicable to ordinary railroad crossings would not apply to crossings of street railways. We think said instruction was properly refused, in the light of the facts disclosed by the evidence. The sixth instruction asked the court to charge the jury that the plaintiff should have traveled some other street for the purpose of avoiding said street cars, if there were other streets he might have traveled. This instruction properly refused, and what we have heretofore said on the subject disposes of this question. was The seventh instruction asked by appellant was given by the court after modifying it, charging the jury that the servants of the railway company were not required to stop their train unless it was necessary to do so to avoid the injury, but, if they could see that a collision was inevitable or reasonably probable, then they should make all reasonable effort to avoid the injury. This instruction was correct as modified and given. We have examined all the instructions given by the court, and find that they stated the law correctly. Appellant's counsel seem to urge that the appellee was required to use the same degree of care while traveling on said avenue along said street railway as would be required of one attempting to cross a railway track at an ordinary railway crossing. While we think he would be required to use ordinary care and caution, we cannot agree with counsel on said proposition. "The same degree of care is not required of persons passing along street railway tracks that is required of a person crossing or walking along the tracks of ordinary railroads. There is a solid foun-dation for this distinction, and to sanction a rule that would impose the same obligation upon persons using the tracks of a street railway as that which obtains where the plaintiff crosses or walks along an ordinary railroad track would be to practically surrender a street to the railway company. This result principle and authority forbid." Elliott, Roads & S. pp. 589, 590; Mentz v. Railway Co., 3 Abb. Dec. 274; Lynam v. Railway Co., 114 Mass. 83; Thomp. Neg. p. 396, note 1; Id. p. 399, note 4. Compare Kelly v. Hendrie, 26 Mich. 255. It is the duty of a street-railway company to exercise ordinary care to prevent injury to persons lawfully traveling the street occupied by its track. Elliott, Roads & S. pp. 585-587. The injury complained of was caused without any negligence on the part of appellee. Appellant's servants did see, or could have seen, the danger in ample time to have avoided the injury which resulted solely from their negligence. After careful examination of the errors assigned, we fail to find any error in the record. The judgment is affirmed. 1. In an action against a railroad company under Rev. St. c. 38, art. 4, providing that railroad companies shall fence their roads or be liable for animals killed by their machinery, without regard to the question of negligence, where the complaint alleged that plaintiff's horse strayed upon defendant's track at a point where it was not securely fenced, it was not necessary to allege or show that the railroad track could have been fenced at said point. 2. Where the complaint failed to allege the county in which the animal was killed, the defect was jurisdictional, and since the causes of demurrer, under Rev. St. § 339, are separate, it was not reached by a demurrer alleging insufficiency of facts to show cause of action. 3. Where a general verdict is expressly found on the first paragraph of a complaint, the court properly overruled a motion for judgment on answers to special interrogatories on other paragraphs of the complaint, where the answers were in harmony with the general verdict. 4. It is immaterial whether the horse was killed by reason of the company's failure to build a fence or repair it. 5. Where there is evidence to sustain it, a judgment will not be disturbed on appeal. Appeal from circuit court, Jay county, D. D. HELLER, Judge. Action by Edson C. Fishback against the Lake Erie & Western Railway Company for damages for a horse killed by defendant. From a judgment for plaintiff, defendant appeals. Affirmed. J. J. M. La Follette, Oscar H. Adair, F. S. Foote, and W. E. Hackerdorn, for appellant. John M. Smith, for appellee. Fox, J. In this case the appellee recovered a judgment against the appellant in the Jay circuit court for killing a horse. The amended complaint filed in the cause consisted of three paragraphs. A demur rer having been overruled to each para- | road Co. v. Tipton, 101 Ind. 197. Manifest graph, a general denial was filed, and upon the issue thus joined the cause was tried by a jury, and a verdict returned in favor of the appellee. Interrogatories were submitted to and answered by the jury. The appellant moved for a judgment upon the answers to the interrogatories submitted to the jury. This motion was overruled. The appellant then filed a motion for a new trial, which was overruled, and a judgment rendered upon the verdict in favor of the appellee. Proper exceptions were taken. The assignment of errors is as follows: "(1) The court erred in overruling the appellant's demur. rer to the first, second, and third paragraphs of appellee's amended complaint, and each of them. (2) The court erred in overruling the appellant's motion for judgment on the answers of the jury to special ly, it was the intention of the pleader, judging from what little he has expressed in his complaint, to proceed under the statute requiring railroad companies to fence their roads, or else become liable for animals killed by their machinery, without regard to the question of negligence. It is also insisted that the first and second paragraphs of the complaintarefatally defective, for the reason thatitis not averred therein that the horse was killed in Jay county. In support of this proposition we are referred to the following cases: Railroad Co. v. Epperson, 59 Ind. 438; Railroad Co. v. Davis, 83 Ind. 89; Railroad Co. v. Breckenridge, 64 Ind. 113; Railroad Co. v. Kious, 82 Ind. 357. In the light of these authorities it unquestionably appears that the paragraphs mentioned are defective, and, if the objection had been interrogatories, notwithstanding the gen-properly taken in the court below, we eral verdict. (3) The court erred in overruling the appellant's motion for a new trial." should have reversed this case. "The action is purely statutory; that is, in the absence of the statutes, the appellant would not be liable to the appellee for the injury to his stock, upon the facts stated in the complaint." Railroad Co. v. Davis, supra. The allegation in a complaint under this statute, as to the place where stock is killed, is in its nature jurisdictional. Railroad Co. v. McClelland, 59 Ind. 440. First in order comes the alleged error of the courtin overruling the demurrer to the several paragraphs of the complaint. In argument, appellant's counsel say that the first paragraphis bad, because “itcontains no averment that the killing of the horse occurred at a place where the road might have been fenced." The brevity of this paragraph of the complaint seems to indicate a poverty in the English language which is not generally understood. Asit appears in the record the paragraph is as follows: "The plaintiff above named, for his amended first paragraph of complaint, complains of the defendant, the Lake Erie & Western Railroad Company, and says that said defendant is a corporation duly organized under the laws of the state of Indiana; that heretofore, to wit, on the --- day of January, 1891, the said defend-plaint does not state facts sufficient to ant was the owner of and operating a railroad, with locomotives and cars, over and through the farm of the said plaintiff, in Richland township, Jay county, Ind.; that on said day of January, aforesaid, the plaintiff's horse strayed upon the track of said defendant at a point where the same was not securely fenced; that said defendant, with its locomotive and train of cars, ran over and against said horse without any fault on plaintiff's part, wounded, maimed, and killed the same, to plaintiff's damage in the sum of one hundred and fifty dollars, which is due and unpaid, for which he demands judgment." In an action of this kind, if it is alleged in the complaint that the railroad was not fenced at the place where the animal entered upon it, it is not necessary that it be also alleged orshown that the railroad could have been properly fenced at such place. Railway Co. v. Hughes, 2 Ind. App. 68, 28 N. E. Rep. 158. If such is the fact, it is a matter of defense. Railroad Co. v. Kious, 82 Ind. 357; Railroad Co. v. Lyon, 72 Ind. 107; Railroad Co. v. Brevoort, 30 Ind. 325; Railroad Co. v. Mosier, 101 Ind. 597, 1 N. E. Rep. 197; Railroad Co. v. Parker, 109 Ind. 235, 9 N. E. Rep. 787; Railroad Co. v. Modesitt, 124 Ind. 212, 24 N. E. Rep. 986; Railroad Co. v. Herbold, 99 Ind. 91; Rail The demurrer filed was for want of sufficient facts to constitute a cause of action. The causes for which a demurrer may be filed to a complaint, under our Code, are stated in the subdivisions of section 339 of the Revised Statutes. The first provides that a complaint is demurrable if it appears upon its face that the court has no jurisdiction of the person of the defendant or the subject of the action. The fifth provides that a demurrer will lie if the “com constitute a cause of action.” Railroad Co. v. Bridgett, 94 Ind. 216. Causes of demurrer must conform to the specifications in the statute. The specifications in the statute as to grounds of demurrer are separate and independent, and the causes assigned in the demurrers should conform thereto. If the pleading to which the demurrer is addressed is not subject to demurrer for the reason assigned, it must be overruled, although it is demurrable upon other grounds. See, also, Railroad Co. v. Milligan, 52 Ind. 505. In this case, the reason assigned for the demurrer was not under the proper specifications of the statute to raise a jurisdictional question; for this reason it was properly overruled. Bass Foundry Works v. Board of Com'rs, Parke County, 115 Ind. 239, 17 N. E. Rep. 593. The objection to the action of the court below in overruling the motion for a judgmentupon the answer of the jury to interrogatories, notwithstanding the general verdict, is not well taken. These answers were in harmony with, and fully sanctioned, the general verdict. The jury, in their general verdict, expressly stated that their finding in favor of the plaintiff was upon the first paragraph of the complaint only. This rendered the issues joined upon the second and third paragraphs of the complaint wholly unimportant, as far | 1, which provides that any person may carry as the result of the trial was concerned. Counsel, in argument, attempt to drawa distinction between the liability of a railroad company in a case where there is a failure to fence the road and one where there is a failure to keep the fence in repair after it is built. The statutory requirement is that the road shall be "securely fenced in." If no fence is built, or if one is built and suffered to become out of repair, so that it will not prevent stock from entering upon the road, then the rond is not "securely fenced in." The jury. in answer to the sixth interrogatory, said that the appellant did not "keep and maintain a fence sufficient to turn stock at the point where the horse strayed upon the track." This responded to the allegation in the first paragraph of the complaint, that the road was "not securely fenced," and fixed the liability of the appellant as far as this point was concerned. Under the third assignment of error the appellant insists that the evidence was insufficient to support either the general verdict or the answers to the interrogatories. The rule is familiar that this court will not review the testimony for the purpose of determining its weight in enses of conflict between witnesses. This is the province of the jury. If, upon any reasonable theory, the evidence fairly amounts to proof of what the jury finds, then this court will not, and should not, interfere. In this case the proof of many of the material points was circumstantial. In attempting to prove these circumstances there was much conflict in the testimony. If the circumstances manifestly relied upon by the appellee were established, then we think the verdict and answers of the jury were justified. Evidently, the jury regarded these circumstances as existing, and that is the end of the matter as far as this court is concerned. Under the fourth assignment of error the appellant complains of the first, second, third, and fourth instructions asked by the appellee at the trial, and given by the court. Counsel say in argument that the appellee "proceeded upon the theory that this was a right of action growing out of a failure on the part of the company to fence its right of way, while the evidence shows conclusively that, if any right of action existed in favor of appellee, it was for negligence in not keeping the fence in repair." No other objection than this is made against the instructions in question. So far as the object of this suit is concerned, we think counsel are attempting to make"a distinction without a difference." The question is, was the road at the point where the horse entered upon it "securely fenced in?" The jury answered that it was not. The judgment is affirmed, with costs. (157 Mann, 392) COMMONWEALTH v. LUTTON. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 23, 1892.) OLEOMARGARINE-SALE WITHOUT LICENSE. Oleomargarine and butterine are "provisions," within the meaning of Pub. St. c. 68, § about from place to place, and expose for sale, fruits, provisions, etc., without a license. Exceptions from superior court, Bristol county. Action by the commonwealth against Hungerford Lutton on a charge of carrying aboutandexposing for sale oleomargarine and butterine without a license. A verdict was entered for plaintiff, and defendant excepts. Exceptions sustained. C. N. Harris, Asst. Atty. Gen., for the Commonwealth. J. A. MeGeough, for defendant. BARKER, J. The complaint does not refer to any statute except in the most general terms. The defendant contends, and the government concedes, that it is based upon Pub. St. c. 68, § 16 The statute of 1886 (chapter 317, § 4) requires that every person who conveys oleomargarine or butterine, in carriages or otherwise, for the purpose of selling the same in any city or town, shall be licensed by the inspectors of milk of such city or town to sell the same within the limits thereof. But the remainder of the section n kes it clear that it was intended to apply only to sales from carriages or other vehicles. As the present complaint has no allegation that the defendant carried or exposed the articles in a carriage or other vehicle, it could not be sustained asacomplaint under St. 1886, c. 317, § 4, and we consider it as based upon Pub. St. c. 68, § 16. So considered, it cannot be sustained. Oleomargarine and butterine are "provisions." The word includes all artieles of food. The articles with which it is charged the defendant went about, and exposed and sold, are therefore included among those which any person may go about selling or exposing for sale under the authority of Id. c. 68, § 1, and the acts charged are not prohibited by Id. c. 68, § 16. The complaint, therefore, alleges no offense, and the defendant cannot be convicted under it. His bill of exceptions is inartificially drawn, but we construe it as intended to raise the question here decided. See Com. v. Washburn, 128 Mass. 421. Exceptions sustained. (157 Mass. 389) SMITH v. SMITH. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 23, 1892.) CAPACITY TO MAKE WILL-OPINION EVIDENCE. On the trial of an issue whether the testator was of sound mind, a witness who had observed the mental and physical condition of the testator for 20 years, but who was neither an attesting witness to the will, an attending physician, nor an expert in matters of mental condition, was asked "whether, from the general appearance of the testator, he considered him capable of making a contract, or of transacting important business." Hold, that the question called for an opinion on the mental condition of the testator, and was properly excluded. Exceptions from supreme judicial court, Bristol county; JAMES M. MORTON, Judge. Proceedings by Ellen N. Smith, execu tris, to probate the will of John B. Smith, |