
    Ballard, Administratrix, v. The Citizens’ Street Railroad Company et al.
    [No. 2,164
    Filed Sept. 15, 1897.
    Rehearing denied Nov. 24, 1897.]
    Special Verdict. — Omission of Essential Fact. — An essential fact omitted from a special verdict will be considered as found against the party having the burden of proving it. p. 528.
    
    
      Same. — Negligence.—When Judgment for Defendant Will Be Set Aside. — Where the questions and answers going to make up a special verdict, in an action for damages for the death of plaintiff’s decedent, caused by the alleged negligence of defendants, are not in form as contemplated hy law, and when construed together show negligence on the part of defendants, and such answers therein tending to show defendants’ freedom from negligence are contradicted by other answers, and which states some facts from which freedom from fault on the part of decedent may be inferred, a judgment rendered on such special verdict in favor of defendants will be set aside, pp. 528-525.
    
    From the Marion Superior Court.
    
      Reversed.
    
    
      George W. Spahr, for appellant.
    
      Will H. Latta and J. B. Curtis, for appellees.
   Henley, J. —

Some time during the month of January, 1894, one Jehu Ballard, while driving along West Washington street, within the corporate limits of the city of Indianapolis, and while crossing the track of the Citizens Street Railway Company, received an injury from which his death afterward resulted. The material of which the street was composed, had worn and been washed away from the rails and ties of the railway tracks, causing them to stand above the surface of the street, and a deep gutter from three and one-half to four feet deep had been worn along said street directly north of and parallel with the railway track; and while driving across the track and street, decedent’s wagon was overturned and he was thrown to the ground. On account of the condition of the street, negligently allowed to become and remain so by the city of Indianapolis, and on account of the improper condition of the street railway tracks, appellant brought this action in the lower court for damages against appellees, alleging that the said decedent’s death was caused by the negligence of appellees, and that decedent was without fault or negligence upon his part.

A demurrer to the complaint was overruled. Appellees both answered by general denial, and the cause being at issue was submitted to a jury and a special verdict returned by way of answers to interrogatories.

But one question is discussed by counsel. Does the verdict show that the decedent did not contribute to his injury?

Appellant’s counsel do not contend but that it was as essential to a recovery for decedent’s death to show his freedom from negligence as it was to establish the negligence of appellees.

An essential fact omitted from a special verdict will be considered as found against the party upon whom was the burden of proving it. Louisville, etc., R. W. Co. v. Quinn, 14 Ind. App. 554; Austin v. McMains, 14 Ind. App. 514; Becknell v. Hosier, 10 Ind. App. 5; Bruner, Rec., v. Brown, 139 Ind. 600.

It appears that the accident in which the decedent Ballard was killed, occurred between 6 and 7 o’clock p. m., and that it was so dark that a person could not see^ the surface pf the street, nor the railroad tracks. It is also clearly found that at the point where the accident occurred upon the traveled portion of Washington street there was a gptter worn three and one-half to. four feet deep, the south line of which declivity extended up to within twelve inches of the north ends of the street railway ties; that these ties were exposed, and that the street railway rails stood six inches above the surface of the street, and that both the appellees had suffered and allowed the street and street railway tracks to remain in that condition for a long time. Construing all the questions and answers going to make up the verdict, together, the finding of negligence upon the part of both appellees herein is very strong, and shows a deplorable condition of the street and car tracks at the point where the accident occurred. But few of the questions going to make up the special verdict are in the form contemplated by the law under which this cause was tried and verdict returned. Some contradictions occur upon material points, and some facts necessary to plaintiff’s recovery are only partially and unsatisfactorily found.

Plaintiff’s decedent was an old man; he was driving a blind horse in the darkness of the night; he was going in a direct line from his home to his place of destination, pursuing his lawful avocation; all these things decedent had-a perfect right to do. The jury finds that the manner in which the horse was driven did not contribute in any way to the injury, and that decedent did not know that the street and railway track were defective and out of repair at the point where the injury-occurred. Thus, it will be seen that the verdict does not wholly fail to show freedom from contributory negligence upon the part of the decedent, and some facts are stated from which the inference of freedom from contributory fault can be drawn. The verdict upon this point is not as full as it should be, indeed, it is very unsatisfactory, but the essential fact is not wholly omitted. This was one of the earliest cases tried under the amended special verdict law, under which verdicts were in the form of interrogatories and the answers thereto, and its commingling of law and facts was probably due to the newness of the practice.

Question 105 and answer were as follows: “Was Jehu Ballard, deceased, upset, thrown out, and injured at the time and place complained of in this action, because the rails and a portion of the ties were above the surface of the street in such a manner as to impede the passage of wagons and carriages, and because of a further defect in said street, which further defect was suffered to remain there by the city of Indianapolis, if not because of both defects in the track and street, state which, if either, caused him to upset?” “Answer. Both.”

And so the jury were of the opinion that the negligence of both defendants was the cause of decedent’s death.

The isolated answers which would tend to show that either of appellees was free from fault are so flatly contradicted, not only by direct questions- and answers, but by the general trend of the whole verdict, as to completely lose their force.

We think the court erred in rendering judgment in favor of appellees.

The cause is reversed, with instructions to the lower court to grant a new trial.  