The complaint is based on the theory of negligent failure to equip an electric passenger car with an approved air brake in violation of the provisions of section 6 of the act of March 8, 1907. Acts 1907, p. 186; Burns' Stat. 1908, § 5283. court. This motion was overruled, and such | swers to interrogatories: Plaintiff was inruling is claimed to be erroneous. jured because of a collision between a passenger car, of which he was in charge as motorman, and a freight car. Plaintiff's car had the right of way, and collided with the freight that should, under the rules, have stopped at a siding. When plaintiff Section 5283, first saw the approaching freight, his car was from 650 to 700 feet from the place of accident, and from 970 to 1020 feet from the approaching freight. The latter car was then running about 35 miles per hour, and plaintiff's about 25 miles per hour. The plaintiff attempted to apply the air brake on his car as soon as he saw the approaching freight, but his car traveled from 150 to 200 feet before the brake took hold, and was traveling at a high rate of speed when the collision occurred. At the time of the accídent the freight had almost stopped. Plaintiff's car, if equipped with a standard brake in good condition and of sufficient capacity to control the speed of the car, could have * in use been stopped in from 350 to 400 feet when *traveling 35 miles per hour. It is further Burns' Stat. 1908, reads as follows: "That * * * * car * * shall not be deemed thereby to have assumed found that plaintiff took charge of the car the risk thereby occasioned nor shall any such employé be held as having contributed to his injury, in any case where the carrier shall have violated any of the provisions of this act. at Indianapolis; that on the day before its braking equipment was carefully tested by competent employés. It was equipped when delivered to plaintiff with an approved air brake, "apparently" in good condition (ital[1] The complaint alleges, among other ics ours), and was, when delivered, subject things, that appellant is a common carrier, to the control of the motorman, and, “under operating an interurban electric railway be- ordinary conditions," was of sufficient catween Indianapolis and Peru, and other cit- pacity to control the speed of the car. The ies; that appellant negligently ran over its brake was not weak, nor worn, and "apparroad an electric passenger car, "which was ently not" broken. The accident occurred not equipped with an approved air brake, in a short distance north of Noblesville. Begood condition, nor subject to the control or tween Indianapolis and Noblesville, on the operation of the motorman in charge there-trip, before the accident, the brake had failof, nor of sufficient capacity to control the ed to work properly on one occasion. speed of the car," and that appellee's in- injury was not solely due to an accidental jury was caused by the aforesaid negligence; occurrence. that on said occasion "the plaintiff was the motorman in charge of said car, and while 30 employed, and while operating the same," he was injured. Appellant insists that the complaint is insufficient because it fails to aver facts showing the relation of master and servant between appellant and appellee. The complaint is sufficient, as against the objection urged, to repel a demurrer for want of facts. Domestic Block Coal Co. v. De Armey, 100 N. E. 675 (this term). It is alleged that appellee while operating the car discovered another interurban car approaching him at a sufficient distance away for him to have stopped his car and avoided the collision had his car been equipped with an approved air brake in good condition, etc.; that, as soon as he saw the approaching car, he attempted to apply the brake to check its speed, but because of the defective condition of the brake the car ran with great speed into the approaching car, and thereby caused the injury. The The following answers were made to the following interrogatories: "(73) Did the defendant after said car was delivered to plaintiff at Indianapolis on that occasion, and before the alleged injury, know or have any knowledge whatever that the brakes on said car had failed to work properly and control the speed of said car be tween the time when said car left Indianapolis and the time the plaintiff attempted to stop the same on account of said approaching freight car?" Answer: "No." "(76) Did the defendant after said car was delivered to plaintiff at Indianapolis on that occasion, and before the happening of the alleged injury, know, or have any knowledge whatever, that the brakes on said car were defective between the time said car was delivered to plaintiff at Indianapolis and the time when plaintiff attempted to stop the same on account of said approaching freight car?" Answer: "No." "(79) From the time said car left the shops The following facts are found by the an- of defendant at Anderson and until said car was delivered to the plaintiff at Indianapo- knowledge includes constructive as well as lis what knowledge or notice did the defend- actual knowledge, unless the context evinces ant have, that the air brake on said car was the contrary. Consolidated Stone Co. v. defective?" Answer: "None." Summit, 152 Ind. 297, 53 N. E. 235. Here, "(82) From the time said car left the shops however, it is evident from a consideration of defendant at Anderson and until said car of the above, and other interrogatories subwas delivered to plaintiff at Indianapolis mitted, that the subject of inquiry was actuwhat knowledge or notice did defendant al, and not constructive, knowledge or nohave that the air brake on said car was not of sufficient capacity to control the speed of said car?" Answer: "None." "(86) Had the equipment of said car composing said power air brake been procured by defendant from manufacturers of recognized standing as manufacturers of power air brakes for use on interurban cars?" Answer: "Yes." "(87) Was the power air brake the kind then in common use on interurban trolley cars such as those operated by defendant at the time?" Answer: "Yes." “(96) If you answer that there was any defect or want of capacity in the brakes of said passenger car after the same was delivered to plaintiff on that occasion, then state whether or not defendant had any means of knowing of the existence of such defect or want of capacity if any, before the happening of the alleged injury?" Answer: "No." It is contended by appellant that when it provided reasonably safe equipment, such as was in general use on well-managed roads, and caused it to be inspected by competent persons, and was without any knowledge, actual or constructive, of defects afterward developing, it had fully discharged its duty to appellee, and that the facts specially found show that this duty had been performed. tice. [4] Appellee claims that the statute imposed on appellant the absolute duty to equip the car according to the provisions of the act, and this duty was not discharged by showing that the car was equipped with an approved air brake, in "apparent" good condition, not "apparently" broken, and of sufficient capacity to control the car "under ordinary conditions"; that appellant's lack of actual knowledge of the defect in the brake and the exercise of ordinary care in equip ment and inspection do not meet the requirements of the act. The statute in question is similar to Act Cong. March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), which rendered it unlawful for any carrier engaged in moving interstate traffic by railroad to use on its line any locomotive engine not equipped with a power driving-wheel brake and appliances for operating the train brake system, or to run any train in such traffic that had not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed. The government brought an action against the Chicago, Burlington & Quincy Railway Company to recover certain penalties, which, it was alleged, had been incurred by the defendant for violations of the act. At the trial a verdict of guilty was directed by the district court, and the judgment was affirmed by the Circuit Court of Appeals. 170 Fed. 556, 95 C. C. A. 642. On writ of certiorari to the latter court the judgment was affirmed by the Supreme Court of the United States. Chicago, etc., R. Co. v. United States, 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582. The above case was decided after appellant had filed its brief in this cause. Mr. Justice Harlan delivered the opinion of the court, and it deals with the questions here in controversy as to the construction of the statute. It was held that the duty of the carrier is an absolute one, which is not met by the exercise of reasonable care and diligence in equipment and inspection. In enacting our statute, evidently modelled after the act of Congress, it cannot be doubted that the Legislature was not satisfied with the duty and liability of carriers to their servants, as defined by common-law rules, and by this act of 1907 it intended that such duty and liability should be measured by a stricter rule. This rule is set out in the act in language so plain as to practically foreclose [2] Appellee insists that interrogatories 73, 76, 79, and 82, on the question of defendant's knowledge of the defective brake, must be held to relate only to actual knowledge by reason of the fact that in other interrogatories submitted such intent in manifest; but, if it should be held that such interrogatories called for answers on the subject of constructive notice, they cannot be considered because constructive notice is a mixed question of law and fact, about which it is not competent to interrogate the jury. Our statute relating to the submission of interrogatories contemplates only special findings of facts in the answers thereto, and it is improper to submit questions which require findings compounded of law and fact. Burns' Stat. 1909, § 572; Elliott's App. Procedure, § 753; Chicago, etc., R. Co. v. Burger, 124 Ind. 275, 24 N. E. 981; Chicago, etc., R. Co. v. Wilfong, 173 Ind. 308, 90 N. E. 307; Cleve land, etc., R. Co. v. Asbury, 120 Ind. 289, 22 N. E. 140; Chicago, etc., R. Co. v. Ostrander, 116 Ind. 259, 15 N. E. 227, 19 N. E. 110; Board v. Bonebrake, 146 Ind. 311, 45 N. E. 470; Korrady v. Lake Shore, etc., R. Co., 131 Ind. 261, 29 N. E. 1069. There is no reversible error. Judgment affirmed. think the duty prescribed by the act of 1907 | good condition, or of sufficient capacity to is absolute, and it is not discharged by proof control the speed of the car. of the use of ordinary care in equipment and inspection. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; United States v. Atchison, etc., R. Co., 163 Fed. 517, 90 C. C. A. 327; St. Louis, etc., R. Co. v. Neal, 83 Ark. 591, 98 S. W. 958. Under such construction of the statute, it is evident that the answers to interrogatories on the subject of equipment are not in irreconcilable conflict with the general verdict. car. The complaint alleges that the brake was not in good condition, and was not of sufficient capacity to control the speed of the The statute requires both qualities. The duty exacted to equip with power air brake in good condition is not performed in supplying a brake in a condition which was good in appearance only. The word "apparent" is defined by Webster as follows: "Appearing to the eye, but not true, or real." Neither is the demand of the statute satisfied by equipment with a brake of sufficient capacity to control the speed of the car "under ordinary conditions." It must have been contemplated by the Legislature in enacting the statute that extraordinary conditions might arise, as did here, when the only means of safety to passengers and employés would lie in the quick control of the car's speed by the application of the air brake. The title of the act (Acts 1907, p. 186) recites that it is "An act to promote the safety of employés and travelers," etc. To hold that equipment, sufficient only for ordinary conditions, fulfills the statutory requirement, would be the subversion of the plain intent of the enactment. It is the duty of courts to uphold the acts of the General Assembly, and not to impair nor overthrow them, unless in conflict with organic law. CITY OF GARY v. MUCH. (No. 22,353.) (Supreme Court of Indiana. March 5, 1913.) 1. MUNICIPAL CORPORATIONS (§ 657*)—PowER TO VACATE HIGHWAYS. An incorporated town has no jurisdiction to vacate its part of a highway whose center forms the boundary line of the town; such jurisdiction not being conferred in express terms by Burns' Ann. St. 1908, 88 7650, 8696, 8697, 8700, 8960, 8961, 9005, Laws 1895, c. 11, and Laws 1899, c. 84, which embrace the law relative to the location and vacation of highways. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 722, 844, 1429, 1496; Dec. Dig. § 657.*] 2. MUNICIPAL CORPORATIONS (8 657*)-POWER TO VACATE HIGHWAYS-STATUTES. While the Legislature may empower municipal authorities to vacate highways, such power must be conferred in express terms. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §8 722, 844, 1429, 1496; Dec. Dig. § 657.*] 3. APPEAL AND ERROR (§ 238*)-Judgment— DECISION. On appeal from a judgment enjoining municipal authorities from vacating a highway, correct as to that part of the highway which an objection that, though the injunction was lay on the boundary of the town, it was erroneous as to another part which lay wholly within the town, could not be reviewed where no motion was made below to modify the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1343-1345, 1382, 13861395, 1397, 1399-1401, 1404-1407; Dec. Dig. § 238.*] 4. MUNICIPAL CORPORATIONS (§ 657*)-VACATION OF STREETS - RIGHT TO RELIEF-INJUNCTION. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 844, 1429, 1496; Dec. Dig. § 657.*] Appeal from Circuit Court, Lake County; Willis C. McMahon, Judge. That the plaintiff in an action to enjoin [5] Appellee's injury was proximately caus-owned no property alongside the highway did municipal authorities from vacating a highway ed by the failure of the brake to control the not deprive him of the right to maintain the speed of the car. The special findings are suit where his complaint showed that the clossilent on the question as to what was the ing of the highway would cause him special and matter with the brake. The statute, in ex- his home. peculiar damage by depriving him of access to press terms (Burns' Stat. 1908, § 5291), absolved appellee from the application of the rules of contributory negligence and assumed risk. The doctrine of res ipsa loquitur applies. Cleveland, etc., R. Co. v. Hadley, 170 Ind. 204, 208, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527, 16 Ann. Cas. 1, and cases cited. The happening of the accident under the facts found by the jury was prima facie evidence of appellant's negligence, which imposed on it the obligation to show some excuse for the prima facie failure of duty on its part. Terre Haute, etc., R. Co. v. Sheeks (1900) 155 Ind. 74, 56 N. E. 434. No such excuse is shown by the findings. The facts specially found do not contradict the general verdict in its finding that appellee's injury was proximately caused by appellant's failure to equip the car with an air brake in Action by Richard Much against the City of Gary. From judgment for plaintiff, defendant appeals. Affirmed. See, also, 95 N. E. 609. Transferred from Appellate Court under Clause 2, § 1394, Burn's Ann. St. 1908. Bomberger, Sawyer & Curtis, of Hammond, for appellant. Geo. B. Sheerer and A. F. Knotts, both of Hammond, for appellee. MORRIS, J. More than 30 years ago a public highway known as the Clark road was established in Lake county leading from the village of Clark northward a distance *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep't Indexes of about 11⁄2 miles to the shore of Lake or highways lying within the boundaries of Michigan, and it has ever since been used by their corporations, and, as it appears that the public. About 15 years ago it was grad- the town was only attempting to vacate such ed and paved with macadam. In 1904 ap- portion of the Clark road as lies within the pellee purchased a two-acre tract of land, boundaries of Gary, the decision of the mubounded on the north by Lake Michigan and nicipality is not subject to judicial review. on the east by the Clark road. The tract The precise question presented has never has a frontage on the lake of about 473 feet been considered in this jurisdiction, nor, so and on the road of about 463 feet, the cen- far as we are advised, in any other. There ter of the road being his east line. It is is no suggestion that the action of the town alleged that the land is of great value. Ap- board was concurrent with similar action pellee resides on this tract, and operates a by the board of county commissioners. Aphotel there. He has three children who at- pellant relies wholly on its right to vacate tend school at Clark. Appellee's post office any highway or portion thereof within its and voting place are at the same place. The boundaries on the exclusive authority grantonly means of egress and ingress from and ed it by statute. Both the laws relating to to his home is over the Clark road, and, if cities and towns and those relating to highthis is closed, it is alleged that the land will ways outside thereof were revised in 1905. be rendered valueless. After the town of There were some amendments adopted in Gary was incorporated, it annexed the ter- 1907, but they have no application here. ritory lying between the town of Clark and It cannot be questioned that the exclusive the lake, excepting appellant's two-acre tract, jurisdiction to vacate highways lying wholly the annexed tract including the territory outside incorporated cities and towns is vestwest, south, and east of appellee's land, and ed in the board of county commissioners. including all the territory through which the Burns' Stat. 1908, § 7650. Neither can it be Clark road ran from the village to the lake, doubted that when this action was comexcepting the west half of the highway ad- menced, except in certain instances not necjoining appellee's land on the east side there- essary to consider here, the exclusive power of. In 1908, after the above annexation, the to vacate existing highways, located wholly town of Gary, by its board of trustees, adopt- within a town or city, was vested in such ed a declaratory resolution vacating all corporation, Burns' Stat. 1908, §§ 8696, 8697, that portion of the Clark road from the 8700, 8960, 8961, 9005; Gascho v. Sohl, 155 lake to Clark, except the west half thereof Ind. 417. But, where the center of an exadjoining appellee's tract on the east side isting highway is the boundary line of a thereof. Appellee filed his complaint against town, may it, pursuant to the authority vestthe town of Gary, alleging the above recited ed in it by statute, vacate the portion of the facts, and other matters, and in which he highway lying within the city? The case prayed for a decree enjoining the vacation of Chicago, etc., R. Co. v. Sutton, 130 Ind. of the road. It was also alleged that, unless 405, 30 N. E. 291, was decided in 1892. At enjoined, the town would vacate the road that time there was no specific statute repursuant to the terms of the resolution garding the location of a new highway on adopted; that the sole purpose of the pro- the boundary line of a city or town. In the posed vacation was to devote the vacated course of the opinion it was said: "We can, road to the sole and private use of certain however, see no good reason why a board of named corporations; that the town has no county commissioners may not act, in conright or authority to vacate the highway, junction with the city authorities, in estaband has no right to vacate it for the private lishing a highway along the line of such use of the corporations named. While the municipal corporation." In 1895 (Acts 1895, action was pending, the town of Gary be- p. 14) the board of commissioners was given came a city, and the city was substituted as jurisdiction to locate highways on the boundparty defendant. A demurrer to the com- ary lines of towns or cities if such boundary plaint for insufficient facts was overruled. lines were section lines. By the amendment This action is here assigned as error. There of 1899 (Acts 1899, p. 116) the board was auwas a trial, finding and judgment for appel- thorized to locate highways on boundary lee. Appellant filed its motion for a new trial on the ground that the decision was contrary to law, and not supported by sufficient evidence. The overruling of this motion is also assigned as error. Inasmuch as the material allegations of the complaint are supported by some evidence, the errors assigned on the action of the court in relation to the demurrer and motion for a new trial will be considered together. [1] It is contended by counsel for appellant that municipal corporations have ex lines of cities or towns, regardless of section lines. Gascho v. Sohl, 155 Ind. 419, 58 N. E. 547. In section 2 of the highway act of 1905 (Acts 1905, p. 521, Burns' Stat. 1908, § 7650) the duties of the viewers with reference to highways proposed to be located, changed, or vacated are set out at length. In this section is found the following proviso: "That, whenever the location of a highway is petitioned for upon and along any line which forms also the boundary of any city or town, the board of commissioners way have jurisdiction over the lands and lots | ment is, in part, erroneous, the remedy is by lying within such corporate limits, and im- motion to so modify it as to eliminate the mediately affected by such proceedings and error. Migatz v. Stieglitz, 166 Ind. 361, 77 location; and the owners of such lands and N. E. 400, and cases cited. lots so affected shall have the same rights and remedies in the matter of the location, vacation, or change of such highway as the owners of the lands lying on the opposite side thereof, and outside of such city or town." (Italics ours.) Considering the fact that there is a difference in procedure and remedies between proceedings before boards of commissioners for vacating highways, and proceedings before town and city authorities, for the same purpose, and considering the other provisions of the highway act, there is not wanting reason for the assertion that section 7650, supra, by implication, confers on the county board jurisdiction to order the vacation as well as the location of roads on city boundary lines, but in view of the conclusion we have reached it is unnecessary to determine this question. [4] Appellant claims that, because appellee's property is without the city limits, he is a stranger to the municipality, and cannot be heard to complain, and to support the claim cites the case of House v. City of Greensburg, 93 Ind. 533. In the above case House owned land outside the city which abutted on the terminus of a street which was vacated. It was held that, under a statute authorizing "any property owner immediately upon the line" of a street proposed to be vacated might object thereto, House was a stranger to the municipality, and had no interest in the street within the meaning of the city charter. We do not consider the decision in the House Case applicable here. Appellee in his complaint shows a special interest in the Clark road as an appurtenance to his property. The closing of the road would deprive him entirely of access to his [2] The Legislature has power to vacate a home except over the waters of Lake Michihighway and such power may be delegated gan. The complaint avers a special and to municipal authorities, but it must be con- peculiar damage not sustained by the genferred in express terms. Elliott, Roads & eral public and such as to entitle him to inStreets, § 1177. The statutes in question do junctive relief. Strunk v. Pritchett, 27 Ind. not in express terms confer on cities or App. 582, 61 N. E. 973; Pittsburgh, etc., R. towns the right to vacate half of a highway Co. v. Noftsger, 148 Ind. 101, 47 N. E. 332, whose center forms the boundary line. It is and cases cited. Appellee contends that it scarcely conceivable that any legislative body was shown by the evidence that the proposed should entertain the intention of conferring vacation was for the purpose of permitting on a town the right to destroy one side of an a private use of the highway, when vacated. established and paved highway, and require On the other hand, appellant claims that the county authorities to maintain the use- the purpose of the board of trustees in orless remainder. A highway must of neces- dering the vacation is not a proper subject sity as to its breadth be considered as a of judicial inquiry. A great many authorwhole. The conflict of jurisdiction contem-ities are cited by counsel in support of their Because the judgplated by appellant's theory would be intol- respective contentions. erable. The town of Gary was without ju- ment of the trial court must be affirmed for risdiction to order the vacation of the half reasons heretofore stated, it is not necessary of the highway opposite appellee's land. to determine this question, and therefore it Whether it might, with the concurrence of is not considered here. the board of commissioners, vacate the highway, in its entire breadth, at such location, is a question not necessary to decide, because such a situation is not presented. King v. Milverton, 5 Ad. & El. 840; Douglas County v. Taylor, 50 Neb. 535, 70 N. W. 27; Rothwell v. California Borough, 21 Pa. Super. Ct. 234; State v. Oxford, 65 Me. 210; Bigelow v. Brooks, 119 Mich. 208, 77 N. W. 810; 37 Cyc. 176. Appellant by the terms of the decree was enjoined from vacating the road or any part thereof between Clark and the lake. [3] It is contended that, inasmuch as all the road south of appellee's land was within the boundaries of the town, the latter's ju There is no reversible error in the record. Judgment affirmed. MORGAN v. STATE. (No. 22,278.) (Supreme Court of Indiana. March 4, 1913.) 1. CONSTITUTIONAL LAW (§ 48*)-CONSTRUC. TION-VALIDITY OF STATUTE. Legislature, wherever possible, without doing The courts should uphold the acts of the violence to the Constitution, and every reasonable presumption is in favor of the validity of the act. tional Law, Cent. Dig. § 46; Dec. Dig. § 48.*] [Ed. Note. For other cases, see Constitu 2. STATUTES (§ 118*)-SUBJECT AND TITLE of ACT-CONSTITUTIONAL PROVISIONS. risdiction over such part was exclusive and the relief granted by the decree of the trial court was to that extent excessive and unwarranted. There was no motion in the lower court to modify the judgment. If a judg*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Laws 1909, c. 87, entitled "An act authorizing and providing for the establishment of a hospital for insane criminals as a part of the Indiana state prison, *** defining the manner of holding insanity inquests in cases of convicts alleged to be insane, and for their |