The Indianapolis and Cincinnati R. R. Co. v. Wright. waived any right he had to an appeal. The motion was sustained, the appeal, as to time, dismissed, and judgment against him for costs. He now prosecutes this appeal. The questions presented are upon those rulings of the Court in dismissing. We are of opinion that, the Court erred in ordering the first dismissal. When the appeal was prayed, the bond filed and approved by the justice, the party was entitled to his appeal, and the justice's duty was to make out and file a transcript in the proper office of the Court to which the appeal was prayed. The fact that the justice mistook his duty on the legal rights of the parties, could not change those rights. The withdrawal of the bond by said justice for one purpose could not divest the right, or affect the validity thereof in any different manner than if he had withdrawn it for some other and different purpose, because such withdrawal for any purpose was unauthorized and did not affect its validity. Per Curiam.-The judgment is reversed, with costs. Cause remanded. Charles N. Shook, for the appellant. 22 376 151 615 151 617 THE INDIANAPOLIS AND CINCINNATI R. R. Co. v. WRIGHT. DAMAGES-MUTUAL NEGLIGENCE. Where there is mutual negli gence, if the defendant can not avoid the accident by reasonable care and skill, the plaintiff can not recover; nor can he recover where his negligence is proximate, and directly and materially contributes to the result, if the defendant could not have avoided the accident by ordinary care. The Indianapolis and Cincinnati R. R. Co. v. Wright. PLEADING PRACTICE.-Some points of pleading and practice are considered by the Court in the opinion herein, which are not susceptible of brief statement, and the reader is therefore referred to the opinion at length. APPEAL from the Shelby Common Pleas. HANNA J.-This case has been here twice before; 13 Ind. 213; 18 id, 168. After the latter reversal, an additional paragraph was added to the complaint, by which it was alleged that, in 1852, the plaintiff, being the owner of the land, &c., conveyed by quit claim to said company a strip of eighty feet wide, through the same, for said road, "provided said company would make three pits and haul all the good rail timber on said eighty feet, outside of said space for the use of said plaintiff; and, also, clear all the timber and brush from off said land;" that the road was constructed upon said strip and operated by the company, and that defendant did not clear off and remove said timber, &c., but wilfully and carelessly cut down into and across a small stream of water running through said eighty feet the trees growing and standing thereon, and wrongfully, &c., suffered said timber to remain across said stream of water until, &c.; that said road crosses said stream where it passes through said strip, &c., at which point the defendant constructed a culvert for the use of said road; that on, &c., the said stream became much swollen, and thereupon the defendant, by her agents and employees, wilfully, wrongfully, &c., pushed and moved the logs, &c., so felled across said stream, down said stream and against the fence of said plaintiff below said track, and thereby removed said fence, which was used to inclose a large pasture, adjoining, &c., in which were thirteen head of large cattle of plaintiff; that said fence, but for the wrongful act of the defendant, was sufficient to keep and confine, &c.; but that, in consequence of such acts of the defendant, said cattle escaped from said pasture, through the opening thus made in the fence, on The Indianapolis and Cincinnati R. R. Co. v. Wright. to the road track, and were there wrongfully ran upon and killed by the locomotive, &c., of the defendant." Previous to filing this fifth paragraph, the defendant moved to strike out the fourth paragraph, which was overruled, and also moved that the plaintiff be compelled to elect upon which paragraph, the third or fourth, he would try, on the ground that the third was based upon tort, and the fourth upon contract; this was also overruled. A demurrer to the complaint assigning for cause that, "causes of action had been improperly united," was also overruled. After the fifth paragraph was filed, by leave of the Court, a motion was made, and overruled, to strike it out; a like ruling was made on a demurrer thereto. Thereupon, on leave, the answer before then filed was withdrawn, and the defendant answered: 1. Denial. 2. Carelessness of plaintiff, in this: that he neglected to repair his fence, &c., or to remove his cattle, &c. 3. As to the part of the complaint in reference to the duty of the defendant to remove the logs, &c., from said eighty feet, the statutes of limitations. 4. As to the charge of wrongful acts, &c., in pushing, &c., timber into the stream, that by reason of the swollen condition of the stream, timber and brush had, by the natural flow thereof, been carried against the culvert, &c., and to save it from being broken it became and was necessary to remove the same; which was done with due care, but a portion floated down, &c. A demurrer was filed to each paragraph of the answer; sustained as to the third and overruled as to the others. Reply in denial. Jury trial, verdict and judgment for the plaintiff for 152 dollars and 50 cents, over a motion for a new trial. The Indianapolis and Cincinnati R. R. Co. v. Wright. It appears to us that the motion and demurrer, based upon the theory that the third paragraph was in tort, and the fourth and fifth in contract, were correctly ruled upon. The leading idea, the gist, of the fourth and fifth paragraphs is, that, by the wrongful and tortious acts of the defendant, the plaintiff had been damaged. The manner in which the alleged wrong was perpetrated is detailed with particularity. The averments in reference to the conditions of the deed, and the failure of the defendant, in regard thereto, are but matters of inducement stated preliminary to the main charge of the wrongful act of the defendant. A more difficult question is presented upon the ruling on this motion to strike out all that part of the complaint in reference to the contract to clear off the timber-in other words, the non-fulfillment of the condition in the deed. The same question is raised upon objections to the admission of evidence of the failure of the company to comply. The rulings of the Court in the progress of the case upon these points was against the defendant. In the charges to the jury, the Court appears to have left entirely out of view the acts of, or failure to act by, the defendant in regard to cutting down and leaving upon the ground, or failing to remove the timber, &., from said strip of land, and placed the right of the plaintiff to recover upon the establishment of wrongful acts by defendant in shoving logs, &c., into the stream and through the culvert, so that they were carried against the fence, &c. Under these circumstances, we are rather inclined to the opinion that, if the charges, thus given, fairly embodied and presented the questions, in litigation to the jury, we should not disturb the finding, even if the Court had erred in refusing to shape the pleadings as asked, or in admitting the evidence objected to. But, did the Court err in that behalf? The Indianapolis and Cincinnati R. R. Co. v. Wright. The substance of the charges made by the plaintiff against the defendant, was that the defendant by misconduct and wrongful acts had injured the plaintiff. The answer, among other things, was that the damage had resulted immediately from the negligence of the plaintiff. This part of the answer was anticipated by that part of the complaint which attempted to show that, although the plaintiff had agreed to keep up the fences, yet there was, also, a further agreement that the defendant was to do certain things, which had not been done as agreed, and that by the failure to do as agreed, the defendant had, to say the least, made it more difficult for the plaintiff to keep up said fence, in this: that by partly performing the agreement, and negligently and carelessly leaving a part unperformed, the defendant had contributed to the wrong and injury which resulted to the plaintiff; and that such careless and wrongful act could be taken into consideration in connection with the subsequent acts of the employees of defendant, in determining the question of the proximate cause of the injury to the plaintiff. But, aside from any liability arising out of precedent agreements, we will look a moment to the respective rights and relative duties of the parties. Here, the company had a strip of land, eighty feet wide, through the farm of the plaintiff, and, we suppose, could use and enjoy that in any manner, not inconsistent with the grant, that it might determine-subject, nevertheless, to the rule of universal application, that every person in the enjoyment of his own property, shall so use it as not to injure the property of his neighbor. Broom's Maxims, 248; Knewbaker v. The Cin. R. R. Co.; 3 Amer. L. Reg. 359. And to the further rule that, reasonable care is an universal duty of all men, in all cases and in all relations. 8 Amer. L. Reg. 390. Tested by these rules and principles, the question is, whether |