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general Verdict, which motion was overruled by the court, and to this
decifiiou the appellant excepted.

°® appellant's motion for a new trial having been overruled by

the court, and its exception entered to this ruling, judgment was

rendered ty the court on the general verdict of the jury, in favor

Of the pl^^ntiff below and against the appellant and the defendant

ihomas 'g^ Farrington ; from which judgment the appellant, the

City ot logansport, alone prosecutes this appeal.

, ^"^is court, the appellant has assigned as errors the following
UeciaionB of the Circuit Court :

^* *^^ overruling its demurrers to the first, second and third para-
grapTaa of the plaintiffs complaint;

*• V.U overruling its motion for a judgment in its favor on the
9^^A findings of the jnry, notwithstanding their general verdict;
Vol. XXXVI— 23



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170 INDIANA,



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City of Logansport v. Dick.



3. In overraling its motion for a new trial;

4. In overruling its motion in arrest of jadgment; and

5. The judgment below was contrary to law and the evidence.
The plaintiff below assigned, as a cross error, that the Circuit

Court erred in refusing, upon her motion, to require the jury to
answer certain interrogatories submitted to them by her, before
they retired to consider their verdict.

The first question presented and discussed by the appellant's
learned counsel, in their able and exhaustive brief of this cause in
this court, arises under the second alleged error, namely, the decision
of the court in overruling its motion for a judgment in its favor on
the special findings of the jury, notwithstanding their general ver-
dict. These special findings of the jury were, in substance, as fol-
lows:

[Omitted, because reiterated in substance below.]
It is earnestly insisted by the appellant's counsel, that upon
J;?l these special findings of the jury, the appellant was clearly entitled

to a judgment in its favor, notwithstanding the general verdict
'^1 -i In section 337 of the Practice Act, it is provided, that, " When the

jjj^j ; special finding of the facts is inconsistent with the general verdict.

;j i the former shall control the latter, and the court shall give judgment

IhJ accordingly." 2 R. S. 187G, p. 172. The question presented for

our decision, therefore, by and under the second alleged error, may
j' be thus stated: Conceding that the facts specially found by the

\l\\ jury are true, and we must regard them as true, can those facts be

l| jj true, and the appellant be liable to the plaintiff below, under the

n I ! averments of her complaint and the issues joined thereon, and on

||1. the appellant's special answers? In other words, can the facts

II ; specially found by the jury be reconciled with those facts which

\|": the jury, under the issues, were bound to find in order to justify

them, under the law, in returning their general verdict in favor of
the plaintiff below, and against the appellant ? Tliompson v. Ciii-
^1 cinnati, etc, R. R, Co,, 54 Ind. 107. Before considering these quo -

% tions, we deem it necessary to a clear and intelligible presentatioi:

' 'j^ thereof, that we should put together, in a connected, affirmative

VH and narrative form, the facts of the case, as specially found by the

|l|y jury in and by their answers to the interrogatories propounded to

them, which we now do, as follows :

The city of Logansport had, prior to the death of John Dick,
adopted a system of water-works for fire protection and other



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MAY TERM, 1880. 17]



City of Logansport v. Dick.



municipal purposes. In pursuance thereof, the city entered into a

written contract witli D. A. Chappel, of Chicago, for the erection

and completion of said works, for a specific sum of money, which

contract was assigned by said Chappcl to the defendant Smith, and

was assigned by said Smith to the defendant Parrington, prior to

the execution of the work and prior to the death of John Dick.

Neither the city of Logansport, nor said H. R. Smith, had any

thing to do with the employing or discharging or paying the men

who were engaged in the digging and excavating of the trenches

for the laying of the water-pipes, or the blasting of rock, or in the

mode and manner of doing the work, up to the death of said Dick.

Thomas B. Farrington, as thp assignee of said Smith, had full and

complete control, by himself and his employees, over the mode and

manner of digging and excavating the trenches and blasting for the

pipes; and the said Farrington employed and discharged and paid

the men so engaged, prior to and at the time of the death of said

l^ick. The blasting of rock, for excavation of the trenches for the

I laying of the pipes, was made necessary by reason of the rock

f ^^rmation at various places in said city of Logansport but not at

; 1^^ place where John Dick was killed. The blasting of rock in the

^^^y of Logansport, prior to Dick's death, could be done for the

construction of the water-works with reasonable security to life and

property, if the blast were protected by rope matting and heavy

timbers. The city of Logansport or H. R Smith had notice of

making the blast by which Dick came to his death.

^^ Parrington and his employees, in making the blast which

^^^^asioned Dick's death, had used the precautions that were used

*f otHer places, by protecting it with rope matting and heavy tim-

^"^^ tlie injury would not have occurred ; and if Farrington and

'* ^rriployees had exercised gi*eater care in making the blast and

proteotmg it, the injury which caused the death of John Dick

^^*cl ijave been avoided. The alarm was given by the men in

cnapg^ of the blast, from three to five minutes before the explosion;

^ u^t the time of the alarm John Dick was not near enough, so

tu^ by the exercise of his senses, he could have heard it. From

^^^ place where Dick was standing when the alarm was given, he

cP^l^ have gone away one hundred aiid seventy feet. John Dick

^^ Dot notified of the impending blast from three to five minutes

l^^re it exploded.

As preliminary to our examination and decision of the questions



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172 INDIANA,



City of Log&DBport ▼. Dick.



presented and discassed by the appellant's counsel under the second
alleged error of the court below, namely, the overruling of the ap-
pellant's motion for a judgment in its favor on the special findiogs
of the jury, notwithstanding their general verdict, we deem it
necessary and proper that we should first direct attention to and
consider, briefly at least, the powers conferred and the duties
imposed by the legislation of this State, upon the appellant as a
municipal corporation, over the streets, highways and alleys within
its corporate limits. The record fails to show under what law the
appellant was and is incorporated; but in such a case it will be
presumed, the contrary not appearing, that the appellant was in-
corporated under the general law of the State for the incorporation
of cities. City of Logansport v. Ifri^W, 25 Ind. 612; Loiarey v.
Oily of Delphiy 55 id. 260 ; State ez reL City of Colunibus v. Hau^
Her, 63 id. 155.

In section 61 of the general law for the incorporation of cities,
approved March 14, 1867, it is provided that the common council
of such a city '^ shall have exclusive power over the streets, high-
ways, alleys," etc., "within such city." 1 R. S. 1876, p. 300.

In the 26th clause of section 53 of said general law for the incor-
poration of cities, it is provided as follows:

" To construct and establish works for furnishing the city with
wholesome water, and for the pur j ose of drainage of such city may go
beyond the city limits and condemn lands and materials and exercise
full jurisdiction, and all the necessary power therefor ; or the com-
mon council may authorize any incorporated company or associa-
tion to construct such works, and m such case the city may be-
come part stockholder in any such company or association," — ** the
common council shall have the power to enforce ordinances," for
such purposes. 1 R S. 1876, p. 291.

But in the 18th clause of said section 53, it is also provided, that
the common council of such a city shall have the power to enforce
ordinances, — " To prevent the incumbering of streets, squares, side-
walks and crossings with vehicles, or any other substance or ma-
terials whatever interfering with the free use of the same." 1 R S.
1876, p. 290.

In section 8 of "An act to authorize the formation of companiei
for the construction of water- works in and for incorporated cities,''
etc., approved March 6, 1865, it is provided, inter alia, that *Mt
shall be the duty of the common council of the city in or for



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MAY TEKM, 1880. 173

Qtj of Logansport v. Dick.

which such company may propose to erect water^works, by reso-
latioQ duly passed and entered apon its minntes^ to grant to
such company such right to the use of the streets, alleys, wharves
and public grounds of such city as shall be necessary to enable such
company to construct the proper works for the supply of water for
the use of such city and its inhabitants: Provuf^rf, That the com-
mon council of such city may, in such grant, impose such just and
reasonable terms, restrictions and limitations upon such company,
in reference to the manner in which such streets, alleys, wharves
and public grounds are to be used * * * as shall be necessary
to guard against the improper use of such streets, alleys, wharves
and public grounds." 1 R. S. 1876, p. 331.

With this legislation in mind, we proceed now to the consideration
of the alleged inconsistency between the facts specially found by the
jary and their general verdict It may be remarked in the outset,
that it is not claimed in argument by the appellant's counsel, that
the jury found especially and contributory negligence by or on
the part of John Dick, or any fact or facts from which such negli-
gence could be fairly inferred, which contributed in any degree to
his death. Indeed, it may well be said, we think, that the special
findings of the jury entirely negative the appellant's defense, upon
the ground of such contributory negligence.

The special finding of the jury showed, among other things, that
after its adoption of a system of water- works for municipal purposes,
the appellant entered into a written contract with one D. A. Chap-
pel for the erection and completion of said works, for a specific
sum of money ; that this contract was assigned by said Chappel to
the defendant Smith, and by said Smith to the defendant Farring-
ton, prior to the execution of the work and to the death of John
Dick; that the appellant had nothing to do with the employment,
discharge or payment of the men who were engaged in digging and
excavating the trenches for laying the water-pipes, or in the blast-
ing of rock, or in the manner of doing the work, prior to the
death of said Dick ; and that the said Farrington had full and
complete control, by himself and his employees, over the mode of
digging and excavating the trenches and blasting for the pipes, and
be employed, discharged and paid the men so engaged, prior to and
at the time of the death of said Dick.

It is claimed by the appellant's counsel, as we understand their
position and argument, that the facts thus specially found by the



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174



INDIANA.



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Citj of Logansport v. Dick.



jary are inconsistent with their general verdict, within the meaning
of 1 the statutory provision, above quoted, iu regard to such incon-
sistency, because they show that the death of John Dick was caused
by the wrongful act or omission of the defendant Thomas B. Far-
riugon, or of the servants of said Farrington, who at the time was
exercising an independent employment, under, and as the assignee
of, a written contract with the appellant, and between whom and
the appellant the relation of servant and master did not at the time
exist. Ordinarily, in such a case, the law seems to be well settled,
that one person is not liable for the act or negligence of another
person, unless the relation of master and servant exists between
them ; and that where an injury has been done by a party exer-
cising an independent employment, the person employing him will
not be liable in damages for injury or death resulting from the
wrongful acts or omissions of such party, or of the servants of such
party. The general rule of law, almost universally recognized in
this country by the courts of last resort, seems to be that where the
work contracted for was not a nuisance />er «e, the employer of the
contractor for such work will not be liable to a third person, or his
representatives, for an injury or death which results from the wrong-
ful act or omission of such contractor, or of his servants, agents or
sub-contractors, in the performance of such work. HiUiard v. Rich-
ardson, 3 Gray, 349 ; Linton v. Smith, 8 id. 147 ; Brackett v. Lubke,
4 Allen, 138 ; Barry v. City of St. Louis, 17 Mo. 121 ; Blake v.
Ferris, 5 N. Y. 48 ; Pack v. Mayor, etc., 8 id. 222 ; Zelly v. Mayor,
etc. 11, id. 432; Storr» v. City of Utica, 17 id. 104 ; McCaffery v.
Spuyten Duyvil, etc., Railroad Co,, CI id. 178; s. c, 19 Am. Rep.
267 ; Painter v. Mayor, etc., 46 Penu. St. 213 ; Allen y. WilJard, 67
id. 374 ; Wray v. Evans, 80 id. 102 ; De Forrest v. Wright,2 Mich.
368 ; City of Detroit v. Corey, 9 id. 165 ; Harper v. City of Mil-
waukee, 30 Wis. 365 ; Scammon v. City of Chicago, 25 111. 424 ;
City of Springfield v. Le Claire, 49 id. 476 ; Pfau v. Williafnson, 63,
id. 16; City of Cincinnati v. Stone, 5 Ohio St. 38; Clark v. Fry, 8
id. 358; Chicago City v. Rohhins, 2 Black, 418; Water Company v.
Ware, 16 Wall. 566; Shearm. & Redf. on Neg., § 79; and Whart on
Neg., § 818. This general rule of law was fully recognized, ap-
proved and acted upon by this court in the decision of the recent
case of Ryan v. Curran, 64 Ind. 345 ; s. c, 31 Am. Rep. 123.

It is insisted by the appellant's counsel, with much earnestness
and ability, that the general rule of law, above enunciated, is ap-



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MAY TERM, 1880. 175



City o£ Logansport v. Dick.



plicable in all its force to the case made by the special findings of
the jury in the cause now before us, and that as the jury found
specially, that at the time of the casualty which resulted in the
<ieath of John Dick, the defendant Farrington was exercising an
independent employment, under a written contract with the appel-
lant, for the construction and completion of its water-works,
^»^e appellant had nothing to do with the employment, discharge or
p5xyment of the men engaged in the work, or with the manner of
^oing the work, and that the said Farrington and his employees
»ad fall and complete control of and over the manner of doing the
^<^>*k, and he employed, dischargod and paid the men engaged
^li such work, prior to and at the time of the death of said Dick —
these facts thus 8|)ecially found by the jury, under the general rule
0/ law above stated, were utterly inconsistent with the appellant's
liability for the wrongful acts or omissions of said Farrington and
iis servants, which caused the death of said Dick, and were there^
fore inconsistent with the general verdict of the jury against the
fPpQilanty and in favor of said Dick's representative, the plaintiff
^'^this suit.
He caauot see this matter, however, in the light in which it has
'^ presented by the appellant's counsel. We do not doubt the
iiibility of Farrington in damages, for the wrongful act or omission
"'^ servants, which caused the death of John Dick. But it seems
\.o\x^, tlit^t in view of the exclusive power conferred, and of the
(soTteiati ve duty necessarily imposed upon the appellant over the
itreeta, u^Ueys and highways, within its corporate limits, in and by
\^ S^slation of this State, providing for the incorporation of
^' '^^ tlx^ appellant could not and ought not to be allowed to avoid
^'"^P^x^tive duty, which it owed to the public, to keep its streets,
* ^ys Hrkii highways in a safe condition for use in the usual manner
y ^^Xlers, nor to escape responsibility for its neglect or failure
P^^Oi^xjri such duty, upon the plea that it had entered into a con-
^^tli another person for the performance of the work, which
^ ^^ccl such use of the street, alley or highway unsafe or danger-
^^^ ^ t\xe travelling public. It cannot be said, we think, that the
'^W ^txt's contract with Farrington or his assignors, for the con-
^ 1^^^^ ftttd completion of its water-works, as found by the jury,
^^" ^r did relieve the appellant of its legal duty to keep those
8 reeipQ^ >vherein the water-pipes were being laid, in such saie con-
^^^ tor use in the usual manner, as that its inhabitants and the



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176



INDIANA,



City of Logansport v. Dick.



Mil



general public might safely and conycniently pass and repass over,
along and across such streets. Notwithstanding such contract, the
appellant stood charged by law with a duty, and could not relieve
itself by that or any other contract of such duty, in the care and
control of its streets, in and through which its water-works were in
process of construction. If in the progress of the work, blasting
was dangerous and unnecessary, the appellant's duty to its inhabit-
ants and the public requii*ed that it should prevent such blasting;
and if on the other hand, the blasting was necessary, and though
dangerous, the danger could be averted by the use of proper pre-
cautions, the appellant's plain duty was to require its contractor to
use such precautions. The appellant could not, by any contract it
might make, avoid its liability to third persons for injury or death
resulting from a breach of its duty in the care and control of its
streets. Grove v. City of Fori WaynSy 45 Ind. 429 ; s. c, 15 Am.
Rep. 262; Town of Centervilley, Woods, 57 id. 192; Mahanoy Town-
ship Y. Scholly, 84 Penn. St., 13C.

For the reasons given, we are of the opinion, that the court com-
mitted no error in overruling the appellant's motion for a judgment
in its favor on the special findings of the jury, notwithstanding
their general verdict.

[Omitting an unimportant matter.]

It is manifest, we think, from the first instruction of the court,
to the effect that " A nuisance is any thing that works tort, incon-
venience or damage to another," that this cause was given to the
jury upon a theory that was radically wrong and well calculated to
mislead the triers of the facts. For in and by this instruction the
jury were virtually told, as it seems to us, that the construction by
the appellant of its water-works, which must of necessity have
worked inconvenience to others, was in and of itself a nuisance.
Throughout the instructions of the court to the jury, the same
tlieory or idea seems to be clearly manifest, and we need hardly say
that it is erroneous. The construction of water-works by the ap-
])ellant was not a nuisance per se; on the contrary, it was a work
fully authorized and provided for, as we have seen, by the law un-
der which the appellant was incorporated. Neither the appellant
nor its contractor could be held liable in damages for any injury or
even death resulting from the construction of the water-works,
unless it could be shown that such injury or death was caused by
some act of negligence of the contractor or of his servants, or some



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MAY TERM, 1880. 177



Qty of Logansport v. Dick.



bToacki. ol daty by the appellant, and that there had been no con-
tribnfcory negligence by the person injured or deceased.

The second instruction of the conrt was as follows: ''As between
c\t; strkd citizens, any thing that endangers the life of a citizen,
tNunn^ along the sidewalk or street of a city, is a nuisance.'' We
are o± -ftke opinion that this instruction does not contain a true
stateiTkeiit of the law. In the crowded thoroughfares of a large
<^itj, the rapid passage to and fro of street cars and other vehi-
cles often endangers the life and limb of the passing citizen, and
y^t tliese cars and vehicles cannot be termed nuisances. Other
^oatx^ations might be given, if necessary, of the erroneous char-
^tejT o:f this instruction, but they will readily suggest themselves.
We pcus to the fifth instruction, which reads as follows : *' If
Joufii^<i that the city of Logansport let the construction of her
^atex*~-^«rorks to Smith or Farrington, and knew that it would be-
come x^^cessary to blast rock in the public highways of said city,
^^ ^Ea.iled, in her contract, to take the precautions necessary to
ppote^iit her citizens against danger resulting from such blastings,
^ in^X^<=^8e on such contractors regulations and restrictions to guard
^i^^^ ^t such dangers, and if afterward, when the city's attention
was c^^Hed to such danger, she failed to take proper steps to abate
or pt-^ "v^nt the same, and John Dick was killed by such blasting,
▼ithoxx ^ fault on his part, the city is liable for such loss of life."

"^^ill be observed, that this instruction is founded upon the
theox-y-^ that the construction by the appellant of its water-works,
II It J^:j-^g^ ^Yiat blasting might become necessary in its public high-
ways, ^ud failed to insert necessary precautions in its contract, was
a ^^"^ ^t^uce p^ se, and that the appellant was liable in any event, if
^* ^ ^^ ^^^ot upon notice abate or prevent the nuisance, for the death
^^ ^*^^ Dick. The instruction does not, we think, contain a cor-
^^ ^^tementof the law. The construction of the water- works
^ . -fc^^^^ * nuisance ^er «e, even if the appellant knew that blasting
^^^ *• "become necessary in the progress of the work, and failed to
^ ^^^ Necessary precautions in its contract ; and yet the jury were
^ ^^^ *^^^ instruction, that if these facts existed, the appellant
'^ ^ be liable for the death of John Dick, without any reference
'^ , *^Ter to the question of the negligence of the contractor and
^^ ^^i^ants, and even though they might have used all proper care
^tv\x pi-ecaution in making the fatal blast. That instruction, in
^^ opinion, is not the law.
Vol. XXXVI— 23



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178



INDIANA,






Mojnih&o V. State.



In the seventeenth instruction, the jury were informed that
^' The plaintiff may recover, notwithstanding his own negligenoe
exposed him to the injury, if the defendant, after becoming aware
oC the plaintiff's danger, failed to use ordinary care to avoid injur-
ing tlie plaintiff." We need hardly say that this instruction was
clearly erroneous ; for it is directly counter to an almost unbroken
line of the decisions of this court. The law must be regarded as
settled in this State, that where one sues to recover damages for an
injury resulting from the defendant's negligence, there can be no
recovery, if the negligence of the injured party contributed to the
injury complained of. Higgins v. Jeffersonvitte, etc^ R. R. Co.y
52 Ind. 110 ; Louisville, etc., R. R, Co. v. Boland, 53 id. 398 ; Jones-
horo, efc.y Turnpike Co. v. Baldvnny 57 id. 86.*

Other instructions of the court are complained of by the appel-
lant's counsel, but we deem it unnecessary, in view of what we have
already said, to extend this opinion in an examination of any of
those instructions. For the reasons given, wo are of the opinion
that the court erred in its instructions above set out, and that for
this error of law, the appellant's motion for a new trial ought to
have been sustained.

This conclusion renders it unnecessary for us to consider now any
of the other alleged errors.

The judgment is reversed, at the costs of the appellee Elizabeth
Dick, administratrix, etc, to be levied of the assets of the estate of
John Dick, deceased, and the cause is remanded, with instructions
to sustain the motion for a new trial, and for further proceedings
in accordance with this opinion.

JudgfMtii reversed.



MoYNiHAN V. State.

(70 Ind. 196.)

Criminal law — murder during robbery — intent.

One who unintentionally kills another in an attempt at robbeij is guiltj of
murder in the first degree, under a statute making it murder in the first de-
gree to kill any person in an attempt to commit robberj.f

— — ■*

• See Penn. Co. v. Sinclair (62 Ind. 901). s.o., 30 Am. Uep. 185. and note, 190L->Rar.
t To same effect, Bud v. People (78 N Y. 498), 31 Am. Rep. SW



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