*

RABB, P. J. This action was begun in the | answer to the interrogatory in question precourt below by the appellee, against the ap- sents no question for the consideration of pellant, to recover damages on account of this court. If appellee is right in this secthe alleged negligence of the appellant in set- ond contention, it is a matter of indifference ting out fires, which destroyed appellee's in the determination of this appeal who is property. The allegations of the complaint. | right in reference to the proper interpretaafter those formal averments showing the tion of the complaint. and we will therefore nature of appellant's business and the own-proceed to its consideration. ership, by appellee, of the property, alleged It is well understood that the general verto have been destroyed, and the situation of dict determines every question within the isthe property, with its relation to the appel- sue in favor of the litigant who has the verlant's road, were as follows: "That on the dict, and, before answers to interrogatories day aforesaid the defendant wrong- returned by the jury with the general verfully and negligently caused one of its loco- dict can override it, they must be in irreconmotives to run over and along said railroad cilable conflict therewith. All reasonable pretrack between the eastern and western bound-sumptions and intendments favor the general aries of the plaintiff's said land; that said | verdict, and nothing is taken by intendment locomotive was defective, and not properly to support contradictory interrogatories. It furnished with a good and sufficient spark arrester; and that it was then and there so carelessly operated and managed that large sparks and coals of fire were thrown from the smokestack of said locomotive, on said elevator, thereby setting fire to the same, without fault on the part of the plaintiff, causing said elevator to be destroyed, to the damage of the plaintiff," etc. Issues were formed, a jury trial had, resulting in a general verdict in favor of the appellee. With their general verdict, the jury returned answers to certain interrogatories propounded to them. These were as follows: "(1) Were the locomotives of the defendant, mentioned in the complaint, at the time of the fires therein stated, properly constructed and equipped, and of the kind and character used upon well managed and equipped railroads? Ans. 'No.' (2) Were the locomotives mentioned in the plaintiff's complaint at the time therein stated run and operated properly. and by competent engineers? Ans. 'Yes.'" Appellant moved for a judgment in its favor upon the answers to the interrogatories, notwithstanding the general verdict, which motion was overruled, and judgment rendered in favor of the appellee upon the general verdict. The action of the court in overruling appellant's motion for a judgment upon the answers to the interrogatories is the only question presented by this appeal.

It is the contention of appellant that the complaint charged two concurring acts of negligence on the part of the defendant, causing the injury complained of, and that the theory of the complaint and the facts charged show that it was necessary that both acts of negligence concur, to create a liability against appellant, and that the answer returned by the jury to the second interrogatory submitted to them is in conflict with the general verdict. On the other hand, appellee contends: First, that the complaint contains but one charge of negligence, and that is the alleged negligent act of appellant in running a defective locomotive over its road, near appellee's premises, by means of which sparks and coals emitted therefrom

is the office of an interrogatory addressed to a jury to submit to their determination a single, distinct, issuable fact, and no more. Pope v. Branch County Savings Bank, 23 Ind. App. 210, 54 N. E. 835; Town of Albion v. Hetrick, 90 Ind. 545, 46 Am. Rep. 230. It is not proper that interrogatories call for the determination of an evidentiary fact or a conclusion. Toledo, etc., v. Goddard, 25 Ind. 185; Pittsburgh, etc., v. Spencer, 98 Ind. 186; Chicago, etc., v. Burger, 124 Ind. 275, 24 N. E. 981; Louisville, etc., v. Berkey, 136 Ind. 181, 35 N. E. 3; Shirk v. Wabash, 14 Ind. App. 137, 42 N. E. 656, and cases there cited; Avery v. Nordyke, etc., 34 Ind. App. 541, 70 N. E. 880. Evidentiary facts and conclusions returned by the jury in answer to interrogatories, or set forth in a special finding, will present no question. Pittsburgh v. Spencer, supra; Shirk v. Wabash, supra. The interrogatory in question is criticised as submitting to the jury two distinct facts, and it is contended that this objection is fatal to its consideration for any purpose by this court. While the interrogatory is subject to the criticism urged against it, to make this objection available, it should have been presented when the interrogatory was asked to be submitted to the jury. By failing to present the objection at the proper time, it is waived, and will not be considered here.

Appellee avers in his complaint that appellant's locomotive was so carelessly operated and managed that sparks and coals of fire were thrown therefrom on appellee's elevator. The interrogatory under consideration required the jury to answer: "Were the locomotives mentioned in plaintiff's complaint, at the time therein stated, run and operated properly?" Did this interrogatory call for a fact or a conclusion? is the question presented. It is insisted that whether the engines were operated properly or improperly is a mere conclusion, and not the statement of a fact; that the word "properly," as used in this connection, is the antonym of "negligently." It is well settled, by repeated adjudications, that the expres sion is a special finding or answer to inter

follows: 'Considering all the circumstances and surroundings at the time and place, did the deceased exercise ordinary care and discretion,' etc., is the statement of a conclusion, and can avail nothing in view of the answers of facts set out." In Avery v. Nordyke, etc., 34 Ind. App. 541, 70 N. E. 888, the jury, in answer to interrogatories, found that the work in question was "carefully done." The court say, in deciding the case: "These statements that the work was 'carefully done' are but conclusions. Care and carefulness are but the antonyms of neglect and negligence."

or that the party was "guilty of negligence," | v. Keister, 163 Ind. 609, 67 N. E. 521, the states a conclusion, and not a fact. Toledo, courts say, with reference to this question: etc., Ry. Co. v. Goddard, supra; Pittsburgh "The answer. 'Yes,' to an interrogatory as v. Spencer. supra; Indianapolis, etc., v. Bush, 101 Ind. 582; Conner v. Citizens' Co., 105 Ind. 62, 4 N. E. 441, 55 Am. Rep. 177; Chicago v. Burger, supra; Board of Commissioners v. Bonebrake, 146 Ind. 311, 45 N. E. 470; Louisville, etc., v. Lynch, 147 Ind. 165, 44 N. E. 997, 46 N. E. 471, 34 L. R. A. 293; Indiana Coal Co. v. Buffey, 28 Ind. App. 108, 62 N. E. 279. We think that the use of the word “properly," in the connection in which it was used in this interrogatory, must be understood as meaning the opposite of "negligently." It seems there could be no question but what. if the interrogatory was propounded in this form, "Were the locomotives mentioned in plaintiff's complaint, at the time therein stated, run and operated improperly?" It would clearly call for a conclusion. Whether they were run properly or improperly would depend upon facts from which the jury might infer the conclusion that it was run either properly or improperly.

We think that, although a different word is used in the interrogatory under consideration, yet it has precisely the same meaning, and that the case cannot be distinguished from the one cited. The answer to the interrogatory finding no fact antagonistic to the general verdict, the appellant's motion for a judgment in its favor on the answers to interrogatories was properly overruled. Judgment of the court below affirmed.

(45 Ind. App. 540) INDIANAPOLIS & N. W. TRACTION CO. V. NEWBY. (No. 6,564.)1 (Appellate Court of Indiana, Division No. 1. Dec. 7, 1909.)

traveling westward on the highway, and that deelectric cars over the crossing so that as a confendant at the time negligently ran one of its sequence, and solely by defendant's negligence, defendant ran its car against decedent's buggy, killing him, sufficiently alleged that decedent was on the highway at the time he was struck.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1107, 1108; Dec. Dig. § 344.*] 2. NEGLIGENCE (§ 108*)—COMPLAINT-GENERAL ALLEGATIONS.

In the case of Louisville v. Berkey, 136 Ind. 181, 35 N. E. 3, the ninth specification in the special finding made in the case was as follows: "That the inferior grade of iron out of which the said coupling pin was made, and the defects and flaws therein, and the said defective condition of the drawbar of said car, could have been discovered by the defendant, upon a proper examination of its coupling apparatus, and defendant had the 1. RAILROADS (§ 344*)-CROSSING ACCIDENTS time and opportunity to make such exam-COMPLAINT. ination." The courts say: "We are inclined In an action for death at a railroad crossto agree with counsel in their contentioning, a complaint, alleging that decedent was that the statements in the ninth finding of fact are mere legal conclusions." In Chicago v. Burger, 124 Ind. 275, 24 N. E. 981; in construing a special verdict, the court say: "The statements of the jury to the effect that the engine from which the fire escaped was not provided with a proper spark arrester, and that the appellant was guilty of negligence in permitting the fire to escape from the engine, and that the negligence of the appellant was the proximate cause of the injury to the appellee, are merely the statements of conclusions. It is the province of a special verdict to state facts, and not conclusions." In Shirk v. Wabash, 14 Ind. App. 137, 42 N. E. 659, in considering a special verdict, this court says: "It has often been decided by the Supreme Court of this state that findings of a jury that the defendant was guilty of negligence and the plaintiff free from contributory negligence, or that the defendant could have discovered defects in the machinery, upon a proper examination, and that the plaintiff could not discover such defects, are findings of mere conclusions, and must be disregarded in considering the sufficiency of the facts found to make a case in favor of the plaintiff." In Wabash •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 'Rehearing denied, 91 N. E. 36.

In the absence of a motion to make more and alleging that it was caused as a consequence specific, a complaint stating decedent's injury, and solely by reason of defendant's negligence, sufficiently charged actionable negligence.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 174; Dec. Dig. § 108.*] 3. APPEAL AND ERROR (§ 1078*)—WAIVER OF ERROR-FAILURE TO DISCLOSE.

An error assigned but not discussed is deemed waived.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4256; Dec. Dig. § 1078.*] 4. WITNESSES (§ 236*) — QUESTIONS-EARNING CAPACITY-CONSTRUCTION.

In an action for death of a farmer, a question calling for decedent's earnings for the preceding year from his business as he conducted it was not objectionable as calling for decedent's gross earnings, but was proper as calling for an estimate of the value of his services as a farmer. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 817; Dec. Dig. § 236.*1

5. RAILROADS (§ 347*)-CrossiNG ACCIDENT-not have required judgment for defendant. EVIDENCE-RELEVANCY. Held, that such instruction, though not to be commended, was not prejudicial to defendant.

[Ed. Note.-For other cases, see Death, Cent. plaintiff's intestate, the said Peter Cruse, was Dig. 145; Dec. Dig. § 104.*]

killing him. We do not think it possible that | by steam railroads in the state by engines a person of ordinary understanding could and trains in approaching public highway fail to know what was intended by this lan- crossings. We fail to see any relevancy of guage, and this is all that is required by the this testimony to the case at bar. Appellant statute. Our practice should not and does did not conduct a steam railroad, and decenot require that a complaint should so state dent was not killed by an engine or train facts that an extraordinarily acute mind may on the steam railroad, and a custom of a not evolve from it a meaning that is clearly steam railroad could and should have no not intended and is contrary to a reasonable bearing upon the questions in issue. There interpretation of its averments. Further was no claim that decedent did not know the more, the complaint states the injury was signal for highway crossings of either incaused as a consequence and solely by reason terurban or steam railroads when he heard of the negligence of appellant. In the ab- them. The evidence was properly excluded. sence of a motion to make more specific, and in the light of the other averments, this is a sufficient charge of actionable negligence. The complaint was therefore sufficient.

Upon the trial of the cause, verdict was returned in favor of appellee. With its general verdict, the jury returned answers to interrogatories. Appellant moved for a judgment on the interrogatories, which motion was overruled. It then moved for a new trial, which motion was also overruled. Both of these rulings are assigned as error. The first, however, is not discussed, and is therefore waived. Under the exceptions to the ruling on the motion for a new trial, appellant presents many questions, the first of which is the admission of the testimony of Thomas Hussey over appellant's objection; the objectionable question being: "You may state to the jury what the earnings of Mr. Cruse would be a year, including and up to March 20, 1905, the date he was killed, from his business, his farm as he conducted it, as you knew that he conducted it." It is urged against this question that it calls for the gross earnings of the decedent and includes | whatever property he owned or leased in making that gross income, which property is not lost by his death, and which is not proper to be considered in determining his earning capacity. We do not think the question subject to the objection urged. It clearly asks the witness to state what Mr. Cruse earned, not what his farm produced, but what his services were worth as a farmer, and it was proper to include in this estimate his capacities as a farmer. Certainly his services were worth more if he was a good farmer than if he was a poor one. It appears from the record that, upon further examination of the witness, in answering the question he had included therein the rental value of the farm and other matters not proper to be considered; but, in this further examination, the witness clearly made the separation of the proper from the improper and testified explicitly as to the net earning capacity of decedent, which he put at $1,000 per year. There was no reversible error in this ruling.

Appellant also objects to the refusal of the court to permit a witness of appellant, upon direct examination, to testify as to whether there was a customary signal in use

Objection is made to instruction No. 2 upon the request of appellee. By this instruction the jury was told that, by the general denial of appellant, the burden of proof was upon the appellee to prove the material allegations of the complaint by a fair preponderance of the evidence, and, if the appellee had so proven such material allegations, then he was entitled to recover such damages as would compensate the widow and children for the injuries sustained, not exceeding the amount demanded in the complaint, unless it appeared from the evidence that decedent was guilty of negligence contributing to his death. The objections to this instruction are twofold: First, it is urged that the instruction is erroneous for the reason that it authorizes recovery on proof of the material allegations of the complaint without specifying what the material allegations are; second, that it is erroneous in the measure of damages in that it does not limit the jury to the evidence nor the law. The first contention of appellant is decided adversely to it in the following cases: New Castle Bridge Co. v. Doty, 168 Ind. 259, 79 N. E. 485; Railway Co. v. Grantham, 104 Ind. 353, 4 N. E. 49.

We will consider the second proposition together with the sixteenth instruction given by the court, which is as follows: "If you find for the plaintiff, you will award such damages as in your judgment will fairly compensate his widow and children, if any, dependent on him for support, not exceeding the amount named in the complaint." The proposition here laid down in general terms is correct. Taken together, the jury is told that it shall only give damages compensating decedent's dependents for their loss, which implies pecuniary loss. If the instruction was not as specific and clear as appellant desired upon this question, it was its duty to ask for a more definite and explicit statement and definition. New Castle Bridge Co. v. Doty, supra; Railway Co. v. Grantham, supra; Indianapolis, etc., Co. v. Henderson, 39 Ind. App. 324, 79 N. E. 539; Cincinnati, etc., R. Co. v. Smock, 133 Ind. 411, 33 N. E. 108; Du Souchet v. Dutcher, 113 Ind. 249, 15 N. E. 459; Crum et al. v. State, 143 Ind. 401, 47 N. E. 833. This appellant did not do. All of the instructions asked by appellant were given by the court. Neither are said instru