Indianapolis Traction, etc., Co. v. Hensley-186 Ind. 479.

nance required nothing more. To say that the ordinance required others using the streets to yield to the superior right of the fire company and thus grant the privilege of the street means nothing more than that they were required, as at common law, to exercise ordinary care to that end, in the absence of some specific provision in the ordinance defining what acts should be done or what precautions should be observed. It cannot be supposed that the ordinance was intended to mean that all other persons using the street should abandon it on the approach of fire apparatus so as to give an absolutely free and unobstructed street for its passage. Every person, vehicle and street car in the street, whether moving or standing, interferes to some extent with the free use of the street by others. It would be unreasonable to hold that the ordinance required all traffic to vacate in order to allow fire apparatus the privilege of an unobstructed street; and yet, if it does not require that, what does it require? Can the court define its requirements? If not it is too indefinite to be made the basis of a charge of negligence per se. The jury cannot be permitted to define its requirements and then determine that it was violated. The ordinance does not specify any act which shall be done, and therefore the court cannot direct the attention of the jury to any act and direct them that the failure to observe it is negligence. Unless the court can tell the jury what acts or precautions an ordinance requires, it cannot rightly state as a matter of law that a violation of the ordinance constitutes negligence. Under such a state of the case, negligence was a question of fact for the jury and not one of law for the court.

This instruction does assume that the ordinance under consideration required the defendant to do some act or to observe some precaution, not required at common law, in order to grant to the fire company the

Indianapolis Traction, etc., Co. v. Hensley-186 Ind. 479.

free use of the street and states that if it violated the ordinance in this respect it was guilty of negligence as a matter of law. It does not attempt to tell the jury what the ordinance required defendant to do in order to comply with its terms, but it leaves the jury to determine what the ordinance required the defendant to do in order to grant the privilege of the street to the fire company. If the court could not tell what the ordinance required in this respect, it should not have submitted the question to the jury so as to allow it to make a guess. The court should never submit the meaning or construction of an ordinance to a jury. I am of the opinion therefore that the instruction is open to the second objection pointed out in the prevailing opinion, namely, that it erroneously submitted a question of law to the jury for its determination, and authorized the jury to determine what acts were required by the ordinance and what acts would constitute a violation of its terms.

If appellant was guilty of negligence in this case, it was because it failed to observe ordinary care at common law, and not by reason of its failure to observe the terms of the ordinance under consideration. The prevailing opinion points out two objections to instruction No. 6 and goes into quite a lengthy discussion in disposing of the first one, the holding being that the ordinance may be properly construed as granting to fire companies a superior right in the street and that as a corollary to such right a duty was imposed on others using the street to recognize this right and to use ordinary care with reference to such superior right. I have no objection to find with the result reached by the majority of the court in holding that the instruction is not erroneous in placing such a construction on the ordinance. This phase of the question has not been regarded as of serious importance, but the question raised

Indianapolis Traction, etc., Co. v. Hensley-186 Ind. 479.

by the second objection pointed out is serious. The prevailing opinion disposes of this question in one short paragraph. It states that the conclusions reached in disposing of the first question serve to dispose of the second objection, since they make it clear that the instruction authorized the jury to determine only issues of fact. The third issue of fact thus submitted as designated in the majority opinion was: "whether appellant's employes failed to yield the right of way to appellee in compliance with the ordinance." This question, however, involves the decision of a question of law-namely, what acts or precautions did the ordinance require of appellee in order to yield the right of way to the fire department, or, in other words, what did the ordinance require appellant to do in order to comply with its terms in that respect? This was a question of law to be determined by the court from the language of the ordinance and it should not have been submitted to the jury. Before the jury could possibly decide whether the defendant's servants had done the things required by the ordinance, it would of necessity have to determine what the ordinance by its terms required. If the ordinance by its terms required any specified thing to be done, the court should have told the jury what it was and should then have left it to the jury to say whether or not it had been done; but, if the ordinance required nothing more specific than the requirements of the common law, then the court should have submitted the question of defendant's negligence to the jury as a question of fact to be determined from a consideration of what ordinary care required irrespective of the ordinance. The error is not a harmless

one.

The instruction gave the jury to understand that the ordinance by its terms required appellant to do something other or different from what the common law required, and that the failure on the part of the de

Indianapolis Traction, etc., Co. v. Hensley-186 Ind. 479.

fendant to do the thing which the ordinance required made it guilty of negligence as a matter of law.

The prevailing opinion sets out a portion of the evidence most favorable to appellee. There has never been any doubt as to the sufficiency of the evidence to sustain a verdict in favor of appellee based on commonlaw negligence, and that is not the question which the opinion discusses or decides. The principal question decided is the correctness of an instruction. The evidence set out could be of no value in determining whether the instruction was correct or erroneous. It is true that the evidence may be of such a character as to show that an erroneous instruction was not prejudicial, but that is not the purpose of setting out the evidence in this opinion. The opinion holds that the instruction is correct and not erroneous, and no attempt is made to show that the error pointed out, if conceded to be error, was harmless. If it could be shown that the error to which I have called attention did not affect the verdict, I would gladly agree to an affirmance of the judgment; but I cannot agree to an opinion which holds the instruction under consideration to be a correct statement of the law. To my mind, the court in giving this instruction lost sight of the line of demarcation which divides the duties of the court from the province of the jury. The principles which define the powers of the court and distinguish them from those of the jury are so important that they cannot be ignored without destroying the very foundation upon which all jury trials rest. I am of the opinion that instruction No. 6 was erroneous and prejudicial and that the giving of such instruction constituted reversible

error.

I am also of the opinion that reversible error was committed by the giving of instruction No. 8 referred to in the prevailing opinion. After calling the attention

Indianapolis Traction, etc., Co. v. Hensley-186 Ind. 479.

of the jury to a number of elements proper for their consideration in fixing the amount of damages, the instruction informed the jury that it might consider all expenses incurred by appellee in attempting to effect a cure of said injuries, if any. Appellant objected to this part of the instruction on the ground that there is no evidence in the record from which the jury could have been authorized to find that appellee had expended any amount of money or had incurred any liabilities. in an attempt to be cured or healed of his injuries.

As to the question thus presented, I am in full accord with the views expressed in a former opinion in this case. Indianapolis Traction, etc., Co. v. Hensley, 105 N. E. 474. In that opinion, speaking for the court on this subject, Justice Erwin said: "In the trial of the cause, evidence was introduced which established the fact that appellee was treated by a physician for his injuries; had a brace prepared to support his head; had made a trip to Florida; had stopped at hotels; at a farm; had been taken to the country; had been treated by physicians both before and after his return from Florida; is still being treated by a physician; that several doctors had been in consultation, one a nerve specialist. There was evidence as to trouble in nursing and caring for appellee, but no evidence as to the cost or expense incurred for any of the things that was done to cure himself, and as far as the testimony shows he incurred no expense. Appellee alleges in each paragraph of his complaint: "That he has spent large sums of money for doctor bills and medical treatment, in an effort to heal himself, and restore himself to health.' In Chicago, St. L., etc., R. Co. v. Butler, 10 Ind. App. 244-258, 38 N. E. 1, that court held an instruction, similar to this one, erroneous, citing numerous authorities. This court has cited that case with approval in Cleveland, etc., R. Co. v. Case, 174 Ind. 369-377, 91 N.