and wanton injury to a trespasser, in that the do not sign such new note, unless there is some special agreement to the contrary, or there are peculiar circumstances affording some substantial reason why such former sureties should still be held liable. Chapman v. Garber, 46 Neb. 16, 64 N. W. 362; 6. TRIAL (8_ 251*)-INSTRUCTIONS-APPLICABell Boyd, 76 Tex. 133, 13 S. W. 332; BILITY TO ISSUES. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] Ryan v. Krusor, 76 Mo. App. 496; Slay-road company, where plaintiff relied not only In a personal injury action against a railmaker v. Gundacker's Executors, 10 Serg. on willful and wanton injuries, but on the last & R. (Pa.) 75-82; Woods v. Woods, 127 clear chance doctrine, instructions denying reMass. 141-149; 32 Cyc. p. 280 (c). covery unless there was proof of intentional injury were properly refused. Appellant's learned counsel have stated numerous propositions and cited many authorities in their voluminous briefs. We have carefully considered all the questions; but, in view of the waiver of other questions and the record itself, no good purpose could be subserved by extending this opinion. Appellant was either entitled to recover on the theory for contribution, or not at all. The finding does not warrant a judgment in his favor, nor does the record present reversible error. It having been made to appear to the court that the appellant has died since the date of submission of this cause, the judgment is affirmed as of the date of submission. (56 Ind. App. 293) [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 587-595; Dec. Dig. § 251.*] 7. APPEAL AND ERROR (§ 1068*)-REVIEW— HARMLESS ERROR. In a personal injury action against a railroad company, where plaintiff, who was a trespasser, sought recovery only for the injuries received, after she had been knocked down and pinioned under a locomotive, the error in an instruction in failing to limit the recovery for such injuries is harmless, where the interrogatories clearly show that the verdict was based solely on such injuries. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*] Appeal from Circuit Court, Wells County; Charles E. Sturgus, Judge. Action by Catherine Ault against the New NEW YORK, C. & ST. L. R. CO. v. AULT. York, Chicago & St. Louis Railroad Com (No. 7,981.)1 (Appellate Court of Indiana, Division No. 1. Oct. 31, 1913.) 1. RAILROADS (§ 359*)-INJURIES TO PERSONS ON TRACKS-TRESPASSERS. A railroad company ordinarily owes no duty to a trespasser on its tracks, except to refrain from inflicting on him a willful injury; and, where an injury is the direct result of the trespasser's presence, he cannot recover. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1238, 1239; Dec. Dig. § 359.*] 2. RAILROADS (§ 390*)-INJURIES TO PERSONS ON TRACKS-RIGHT OF RECOVERY. pany. From a judgment for plaintiff, defendant appeals. Affirmed. Walter Olds and Wm. A. Campbell, both of Ft. Wayne, for appellant. Jesse Macbeth, of Ft. Wayne, and Abram Simmons and Frank C. Dailey, both of Bluffton, for appellee. LAIRY, C. J. Appellee recovered a judgment against appellant for personal injuries. The complaint is in two paragraphs, the first of which charges that the servants of appellant willfully and intentionally injured apWhere a woman trespassing on railroad pellee in the management and operation of tracks was run down by a train and pinned un- the locomotive and cars of appellant. The der the engine in such a position that to move second paragraph is based upon the alleged the engine would injure her, the act of the serv-negligence of appellant's servants in the opants of the railroad company in moving the engine without precautions is negligence, entitling her to recover under the last clear chance doctrine. DOCTRINE. eration of such locomotive and cars. [1] Appellant challenges the sufficiency of the second paragraph of complaint, and this is the first question we will consider. The allegations of this paragraph disclose that appellee, at the time she received her in [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.*] 3. NEGLIGENCE (§ 83*)-LAST CLEAR CHANCE The last clear chance doctrine is applica-juries, was a trespasser on the bridge and ble to cases in which it appears that the transaction out of which the accident arose involved some antecedent negligence on the part of the plaintiff which exposed him to the danger of injury, but which the defendant had an opportunity to avoid. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] 4. NEGLIGENCE (§ 83*)-LAST CLEAR CHANCE DOCTRINE-TRESPASSERS. The last clear chance doctrine extends to trespassers. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] 5. NEGLIGENCE (§ 83*)-LAST CLEAR CHANCE tracks of appellant. It is generally stated as a rule of law that a railroad company owes no duty to a trespasser on its tracks, except to refrain from inflicting on him a willful injury. Palmer v. Chicago, etc., R. Co., 112 Ind. 250, 14 N. E. 70; Pittsburg, etc., R. Co. v. Hall, 46 Ind. App. 219, 90 N. E. 498, 91 N. E. 743; Freitag v. Chicago Junction R. Co., 46 Ind. App. 491, 89 N. E. 501, 92 N. E. 1039; Thompson, Com. Neg. § 1713. Relying on this proposition, appellant takes the position that, as the paragraph in question affirmatively shows that appellee was a trespasser when she received her injury, it is insufficient to state a cause of action on the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes was lying beneath the front footboard of the engine, and it may likewise be conceded that her position there was the result of the fact that she was a trespasser, and guilty of contributory negligence. The complaint proceeds upon the theory that appellant was guilty of negligence in backing the engine off of appellee and injuring her, after it knew of her perilous situation beneath the footboard and the danger to her of moving the engine backward. The doctrine of last clear chance aptly applies to the facts alleged in this paragraph of complaint. The principle on which this doctrine rests, and some of the conditions under which it may be applied, have been recently considered by this court. Evansville, etc., Co. v. Spiegel, 49 Ind. App. 412, 94 N. E. 718, 97 N. E. 949; Schilling v. Indianapolis, etc., Traction Co., 96 N. E. 197; Indianapolis, etc., Traction Co. v. Croly, 96 N. E. 973; American Foundry Co. v. Inzer, 101 N. E. 676. ground of negligence, for the reason that it, not liable for any act prior to the time she shows affirmatively that appellant owed no duty to appellee to use care to avoid injuring her. The fact that a person at the time of receiving an injury was trespassing on the tracks of a railway company shows him to be guilty of negligence per se in so far as his relations with such company are concerned; and, if such negligence directly and proximately contributes to his injury, he cannot recover. The paragraph of complaint under consideration does disclose that appellee was a trespasser, and thereby shows that she was guilty of negligence per se. It, therefore, discloses a defense, and it is fatally defective for that reason unless further facts are pleaded which are sufficient to meet and overcome the defense disclosed. If the other facts pleaded are sufficient to show that the negligence of appellee in being upon the tracks was not a direct and proximate cause of her injury, but that it was only a remote cause, giving rise to a condition in view of which appellant was called upon to [3] The doctrine of last clear chance is act, it may still be held to state a cause of most commonly applied to a class of cases action under the doctrine of last clear in which it appears that the transaction out chance. Even though it be conceded that un-of which the accident arose involved some der ordinary conditions a railroad company antecedent negligence on the part of the dedoes not owe a duty to trespassers on its fendant, and where the injured party has tracks, still conditions may, and often do, also been guilty of some fault or negligence arise which create a duty on the part of the which exposed him to the danger of the inrailroad company to use care in favor of jury which resulted, but where a condition such persons. arose prior to the injury, which afforded the defendant a last clear chance of avoiding such injury, of which chance he negligently failed to take advantage. The same principle applied in these cases may, however, be applied to a case where the defendant has not been guilty of any antecedent negligence. If conditions develop prior to an injury which afforded a defendant a last clear chance of avoiding it, the duty to use care to that end immediately arises. It is a duty born of the situation of the parties, and its existence does not depend upon any facts showing a duty in favor of the party injured prior to the time such conditions arose. The negligent failure to discharge such a duty may constitute original negligence. Schilling v. Indianapolis, etc., Traction Co., 96 N. E. 167. [2] The conditions as disclosed by the paragraph of complaint under consideration are that plaintiff was attempting to cross defendant's trestle in the nighttime on a planked space between the north and south tracks laid thereon, and was struck by defendant's car running on the south track, and thrown upon the north track, where she was run upon by defendant's engine; that the defendant, through its employés in charge of the engine which was over plaintiff, "well knew the danger in which plaintiff was placed, and was in full view of plaintiff, and well knew that said engine was over and upon plaintiff, and was fully able to raise said engine up and extricate the plaintiff without injuring her, and was fully able to remove the front footboard of said engine, which said front footboard pinioned plaintiff to the [4] The doctrine of last clear chance has earth, and thus remove plaintiff from under been applied to cases where the injured said front footboard and said engine with-party was a trespasser. Clark v. Wilmingout injuring her, and saw plaintiff under said engine, and saw plaintiff's perilous situation, and saw and knew that they could not back said engine from off plaintiff while said footboard was on said engine"; that without ex-R. Co. v. Coleman, 86 Ky. 556, 6 S. W. 438, 8 ercising any of the precautions mentioned, or allowing plaintiff to extricate herself, through its employés, "then and there carelessly and negligently gave orders to back said engine from off plaintiff, and then and there brought said front footboard on said engine over plaintiff's body, and then and there carelessly and negligently injured the plaintiff." Ap ton, etc., R. Co., 109 N. C. 430, 14 S. E. 43, 14 L. R. A. 749; Chicago, etc., R. Co. v. Pritchard, 168 Ind. 398, 79 N. E. 508, 81 N. E. 78, 9 L. R. A. (N. S.) 857; Louisville, etc., S. W. 875; 2 Thompson on Neg. § 1734. [5] It is contended on behalf of appellant that no distinction exists between the duty imposed by the doctrine of last clear chance, as announced and applied by the courts, and the duty not to inflict a willful injury. With this contention we cannot agree. The duty which arises under the various conditions to [6] Appellant complains of the refusal of the court to give at its request each of several instructions, numbered 1, 4, 5, 9, 11, 12, and 13. All of these instructions proceed upon the theory that a recovery could be allowed only upon proof of facts showing a willful and intentional injury, and each was so worded as to preclude a recovery upon proof of negligence. For the reasons already stated the court did not err in refusing each of these instructions. a duty to exercise reasonable care, and to use court holds the second paragraph of comreasonable judgment and prudence to pre-plaint sufficient to state a cause of action vent injuring the party who, by his own upon the ground of negligence, appellant's fault or negligence, has exposed himself to argument entirely fails. There is ample evidanger. After such a condition arises, the dence to sustain the charge of negligence party owing the special duty may intention- stated in this paragraph. ally and willfully injure the party exposed to danger, or he may negligently fail to use proper care and judgment to avoid injuring him. In the former case he would be guilty of willful injury, but in the latter case he would be guilty of negligence. Our meaning can be illustrated by reference to this case. If the servants of appellant knew that the plaintiff was under the locomotive, and also knew that her leg was in such a position that it would be crushed by moving the engine backward, a jury might properly find that [7] Instruction No. 2, given at the request backing the engine under such circumstances of appellee, is objected to upon the ground amounted to a willful injury; but, if they that it does not limit the right of appellee to a believed that she was lying in such a posi- recovery for negligence on the part of appeltion that she would not be injured by backing lant which occurred after she was pinioned the engine, and they did back the engine to the ground under the footboard of the enwithout exercising proper care and caution gine. The instruction should have been so to ascertain whether or not such a course limited; but, in view of the answers to the was likely to produce an injury, such conduct would amount to nothing more than a want of ordinary care. What we have said as to the sufficiency of the second paragraph of complaint practically disposes of a number of questions raised. It is evident that the court did not err in overruling the demurrer to this paragraph, or in overruling the motion of appellant to strike it out. What has been said is also decisive of the question raised by the motion for judgment on the interrogatories notwithstanding the general verdict. If, as contended by appellant, both paragraphs of complaint were based upon a charge of willful and intentional injury, the interrogatories would be in irreconcilable conflict with a general verdict resting upon either of such paragraphs, as it is admitted by the brief of appellee that the facts found by such answers show that the injury was not caused intentionally or willfully. We have held, however, that the second paragraph of complaint states a cause of action on the ground of negligence, and it is not contended that the facts found by the answers to interrogatories are in conflict with a verdict resting upon this paragraph, if held sufficient on the theory of negligence. Appellant assigns as error that the trial court erred in overruling its motion for a new trial. The propositions already discussed practically dispose of most of the questions properly presented by appellant's brief under this assignment. Appellant asserts that a new trial should have been granted upon the ground that the evidence is insufficient to sustain the verdict. If, as contended by appellant, it were necessary to prove a willful or intentional injury in order to sustain a verdict on either paragraph of complaint, there might be considerable merit in this claim; but, in view of the fact that this interrogatories, it is clear that the verdict.is based solely upon the negligent conduct occurring subsequent to that time, and for this reason the error, if any, was harmless. The objections to the other instructions are all based upon appellant's contention that there could be no recovery upon the ground of negligence. Our previous discussion of this question disposes of these objections. No reversible error is shown. Judgment affirmed. (259 Ill. 594) BISSELL et al. v. EDWARDS RIVER (Supreme Court of Illinois. Oct. 28, 1913.) MENT. Levee Act (Hurd's Rev. St. 1911, c. 42) § 44, provides that, at any time before the contion of any drain, the county court may upon tract shall have been made for the construcpetition of a majority of the owners of the district, representing one-third of its area, after notice and hearing, if satisfied that justice requires it, direct the commissioners to abandon any drain or other work, and further declares that, if the court shall determine that any portion of the proposed work shall be abandoned, the work shall be diminished thereby and abate it shall ascertain to what extent the cost of the assessments. The latter part of the section authorizes the abandonment of all work and the abolition of the district upon a petition signed by not less than two-thirds of the landowners owning more than one-half of the area of the land assessed for benefits, and whose assessments aggregate not less than one-half of the petitioners to pay all costs, debts, and exthe costs of the proposed work, and requires penses theretofore incurred. Held, that the first part of the section merely authorized the abandonment of part of the work, and the county of the landowners representing only one-third court could not, upon petition of a majority of the area of the district, abolish an entire drainage district, and order an abandonment of the whole work. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 4, 5; Dec. Dig. § 16.*] DONMENT. 2. DRAINS (§ 16*)—ESTABLISHMENT-ABANDrainage districts being solely creatures of statute, the power to organize and abolish is legislative, and the courts cannot, because of injury to property holders, order an abandonment of a drainage district except in accordance with the procedure of Levee Act (Hurd's Rev. St. 1911, c. 42) § 44, or Act July 1, 1889 (Hurd's Rev. St. 1911, c. 42, §§ 191, 192), providing for the dissolution of drainage districts after the letting of contracts. [Ed. Note. For other cases, see Drains, Cent. Dig. §§ 4, 5; Dec. Dig. § 16.*] an agreement, concurred in by the attorney of the district, limiting the cost of the work to $15 per acre, and that the proposed improvement would cost more than that. The petition prayed that all costs and indebtedness so far incurred by said district be equitably distributed over all the land in proportion to the assessments made. [1] The sole question presented on this record is whether, under the provisions of the first part of section 44 of the Levee Act, the county court is authorized to order an aban donment of the entire work proposed. Said section 44 provides two methods for abandoning work. The latter part of the section au Appeal from Mercer County Court; Henry thorizes the abandonment of all the work E. Burgess, Judge. Petition by W. H. Bissell and others against the Edwards River Drainage District for the abandonment of the whole system of work. From a judgment dismissing the petition, petitioners appeal. Affirmed. Church & Church, of Aledo, and Searle & Marshall, of Rock Island, for appellants. Bassett, Morgan & Hebel, W. J. Graham, and John M. Wilson, all of Aledo, for appellee. CARTER, J. The Edwards River Drainage District was organized in 1910 under the socalled Levee Act, passed in 1879 (Laws 1879, p. 120), for the purpose of constructing certain drains for agricultural purposes in the Edwards river valley to protect the lands from overflow from that river and its tributaries. Commissioners were appointed and the proceedings had progressed as far as the filing, but not the confirmation, of the commissioners' roll of assessments. May 7, 1912, a petition was filed in the county court praying that the whole system of work might be abandoned. October 11, 1912, the petition was amended, setting out more in detail the reasons therefor. On demurrer the petition was dismissed, and this appeal was taken directly to this court. Kline v. Barnes, 250 Ill. 404, 95 N. E. 473. The petition for the abandonment of the proposed work is based upon the first part of section 44 of the Levee Act (Hurd's Rev. St. 1911, c. 42), being signed by a majority of the landowners of the district representing one-third of its area. It alleged that, while the district was organized to establish a complete system of drainage, the plan adopted was the mere straightening of the Edwards river, and the engineers had not taken into consideration the watershed to be drained and had acted on insufficient data; that the final estimate made was insufficient and inadequate; that the commissioners had left out lands that would be benefited and included some that would not be benefited; that the proposed work made no provision for an adequate outlet and was totally inadequate to carry off the flood waters; and that a large number of owners signing the petition for the organization of the district had signed and abolishing the district upon a petition signed by not less than two-thirds of the landowners owning more than one-half of the area of the lands assessed for benefits and whose assessments aggregate not less than one-half of the cost of the proposed work, and the debts and expenses incurred up to that time, upon condition that the petitioners pay all the costs, debts, and expenses within 10 days from the rendition of the order. Appellants contend that under the first part of the section, on a petition of a majority of the landowners representing one-third of the area, the court can order the abandonment of all the work without abolishing the district, still leaving the district organized to initiate other plans and carry them forward. With this we do not agree. The first part of the section provides that the county court may, at any time before the contract is let, on petition of a majority of the landowners representing one-third of the area, "if upon due inquiry it shall be satisfied that justice towards all the landowners of said district requires it, direct the commissioners to abandon any drain, ditch, levee, or other work, or any part thereof, mentioned in such report or order." This shall be done only after notice and full hearing, and, "if the court shall determine that any portion of the proposed work shall be abandoned, it shall ascertain to what extent the cost of said proposed works will be diminished thereby" and apportion and abate the assessments in accordance with said modified plans, and, if any lands have been assessed which will not be benefited because of such change, the entire assessments against them shall be ordered abated. From the reading of the entire section it seems plain that the first part was intended to authorize the court, if it thought justice required, to abandon a portion of the proposed work, while under the provisions of the latter part of the section the entire work could be abandoned and the district abolished, provided the action in either case was taken before a contract was let for any work. The construction of the section contended for by for by the appellants is not reasonable. Every ground urged here for abandoning the proposed work could have been raised and Judgment affirmed. (260 Ill. 111) CITY OF PANA v. CENTRAL WASHED urged at the time the district was organized. | under the provisions of the act of July 1, If the lower court had ruled against the con- 1889, relating to the dissolution of drainage tentions of appellants, had they raised these districts. Hurd's Stat. 1911, p. 934. questions at that time, they would have had The judgment of the county court will be an opportunity to be heard on all of these affirmed. points in this court by bringing that record up in the regular way. We find nothing in the language of section 44 or the remainder of the act to justify a conclusion that the Legislature intended, under the first part of said section 44, to authorize a petition to be filed therein which would serve, in every practical sense, as a bill of review as to all the former proceedings of the district. The first part of said section, which provides for modifying the plans and abandoning a part of the work, makes no provision for the payment of costs already accrued. If all of the proposed work were abandoned, such costs could not be paid. It may well be doubted, from reading the entire act, whether such costs could be taken care of if new plans were proposed. The last part of said section 44 makes provision for caring for the costs if the work is abandoned and the district abolished. (Supreme Court of Illinois. Oct. 28, 1913.) 1. NUISANCE (§ 80*) - ABATEMENT AND INJUNCTION-GROUNDS. enjoin the continuance of a nuisance, either The power of courts of equity to abate or public or private, is of recent origin, and will be exercised only in extreme cases, at least until after the right and the question of the nuisance have been settled at law. [Ed. Note. For other cases, see Nuisance, Cent. Dig. § 192; Dec. Dig § 80.*] 2. NUISANCE (§ 82*)-PUBLIC NUISANCESINJUNCTION COMPLAINANT CORPORATIONS. MUNICIPAL the power granted to it to abate nuisances, may, A municipal corporation, in the exercise of under proper circumstances, call upon a court of equity for assistance. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 195; Dec. Dig. § 82.*] -DETERMINATION OF RIGHT AT LAW. vene; but, where the nuisance has been estabbe free from substantial doubt as to the right lished at law, or where the case is so clear as to to relief, or it is evident that a nuisance per se exists, equitable relief may be granted. Counsel for appellants rely upon McCaleb v. Coon Run Drainage District, 190 Ill. 549, 60 N. E. 898. In that case there was a hear-3. NUISANCE. (§ 80*)-INJUNCTION-GROUNDS ing upon a petition, answer, and evidence, Where there is a substantial dispute as to and this court held that the evidence offered the facts or law regarding a nuisance, trial at did not justify an abandonment of the pro-law will be required before equity will interposed work. No attempt was made in the opinion to construe the provisions of this section or to decide whether, on a petition signed by a majority of the owners representing one-third of the area, the entire work could be abandoned and the district abolished. [2] Appellants further contend that, if the court did not have jurisdiction and power, under said section 44, to order the abandonment of the proposed work, it necessarily had the implied and inherent power to do this in order to do justice to the property owners. Drainage districts are solely creatures of the statute. The power to organize and abolish is legislative. Hollenbeck v. Detrick, 162 Ill. 388, 44 N. E. 732. Unless the provisions of statutes contravene some constitutional provision, the courts can only construe them. If, fairly construed, so many evils and such great injustice will arise under the Levee Act as contended by appellants, the remedy rests with the Legislature and not with the courts. They cannot pass upon the necessity or wisdom of this statute. Under a petition signed by only a majority of the landowners of the district representing but one-third of its area, the county court is not authorized to order an abandonment of the whole system of the proposed works of the drainage district. That can only be done when the provisions of the last part of said section are complied with, on a petition of two-thirds of the landowners owning more than half the area of the lands assessed, or, after contract has been let and work done, [Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 192; Dec. Dig. § 80.*] 4. NUISANCE (§ 84*)-INJUNCTION-LACHES. A right to an injunction against a nuisance per se before the right is established at law may be lost by the laches of the complainant, where the alleged nuisance has continued for several years, especially if by the delay the defendant has incurred large expenditures under the reasonable belief that there would be no objection to his carrying on the business. [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 196-199; Dec. Dig. 84.*] 5. MUNICIPAL CORPORATIONS (§ 697*) STRUCTIONS TO STREETS LACHES. INJUNCTION OB Where two platted streets had not been improved or repaired for over 20 years, and had been used only by the owners of adjoining most of that time, an injunction will not be islands, and more or less obstructed during the sued to remove from the streets a coal slack pile which had been accumulating without objection for over 6 or 7 years, especially where the buildings of the defendant company also encroached upon the street, and there was no prayer in the bill that they be removed. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1502-1505; Dec. Dig. § 697.*] 6. NUISANCE (§ 64*)- INJUNCTION — GAS, AND NOISE. SMOKE, There is no general rule for the granting of an injunction against a business, lawful in itself, but injurious to the health or comfort of noise; but if, under the circumstances and in the neighborhood by reason of smoke, gas, and that locality, the business is so offensive to ordi |
