Irving Browne Isaac Grant Thompson.

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together with answers to numerous special interrogatories submitted
to them at the request of the parties respectively.

The defendant moved for a judgment in its favor upon the answers
of the jury to the special interrogatories, but that motion was over-
ruled. Motions for anew trial and in arrest of judgment were also
successively overruled and judgment was rendered against the de-
fendant upon the general verdict

It is claimed on behalf of the appellant, that the demurrer ought
to have been sustained to the second paragraph of the complaint,
but in our estimation no valid objection to that paragraph has been
shown.

The facts of this case, as they were made to appear on the trial,
may, in general terms, be stated as follows :

On the evening of October 30, 1876, the appellee, who lived with
her parents south of the appellant's railroad, and who was attending
school north of that road, and was then about eight years old, was
passing over the railroad on the east side of Hanna street, in the
city of Port Wayne, on her return home from school. There were
seyen or eight tracks or side-tracks belonging to the road and run-
ning near to, and generally parallel with, each other, across Hanna
street at that point When the appellee, in her attempt to cross
the raflroad, had reached perhaps the fifth track, counting from
the north, she was struck by a train of cars, consisting of an engine.



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Peonsylvania Compaoj ▼. HensiL



a tender and two box-cars, then being slowly backed oTcr Hanna
street from the west, and one of her legs was thereby so broken and
crashed that it had to be amputated. The crossing was necessarily
a somewhat dangerons one. There was no sidewalk over the rail-
road on the west side of the street. The several side-tracks ap-
proached the street from the west in carved lines, and so crossed
and intersected each other as to make it difficult for an inexperienced
person to determine upon which track a train from the west would
cross the street, although the tracks and all trains upon them might
have been seen for the distance of nearly, if not quite, a quarter of
a mile, looking west from the crossing. The engine of the train
which struck the appellee was at the west end of the train. The
engineer was on the engine, and a brakeman was on the tender, but
there was no brakeman on the forward car at the east end, nor was
any one upon either of the box-cars, to look out in advance or to
notify persons of danger. On the east side of the street there were
some rows of coal bins or boxes, almost touching the sidewalk.
These bins were about five feet high, and tracks of the railroad ran
between them. At the time the appellee approached the crossing,
there were an engine and one or two cars upon one of the tracks
between these coal bins, the cars being loaded with coal and the
engine blowing oft steam. The appellant had a flagman at the
crossing, as required by an ordinance of the city, for the protection
of persons passing and repassing in that vicinity. Just before the
collision a wagon and a balked team of horses were standing on the
street near the east side, and not far from the fifth railroad track,
around which the flagman, and many other persons, were gathered,
and to which they were giving their attention. The flagman did
not see the appellee until she was on the track, oply a few feet in
front of the cars, when ho hallooed at her to go back ; and in at-
tempting to go back, either in consequence of a defect in the plank
between the rails or of a misstep, she fell on the track and was in-
jured as hereinbefore stated. A larger school girl who accompanied
the appellee, but was in advance of her, passed over all the tracks
safely.

An ordinance of the city of Fort Wayne was read in evidence by
the appellee, which provided, amongst other things, that a flagman
should be kept and maintained by the proper railroad companies,
at all railroad crossings on Hanna street, ''whose duty it shall be
to signal persons travelling in the direction of any or either of the



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NOVEMBER TERM, 1880. 191

Pennsylvania Company v. HensiL

crossings aforesaid, and warn them of the approach of any locomo-
tive, engr^ine or other impending danger."

The appellee introduced evidence tending to show that the whis-
tleot ti\& locomotive, attached to the train which injured her, was
not Bovirx^ed as the train approached the Hanna street crossing.

The appellant, in defense, offered to read in evidence an ordinance

of the oi ty of Fort Wayne prohibiting the sounding of a locomotive

^histlo daring the ordinary transportation of trains through that

city, but the court, over the exception of the appellant, refused to

permit the proposed ordinance to be read.

No satisfactory reason for the exclusion of the ordinance thus
offeree! ix^ evidence has been suggested, and we confess our inability
to recall any principle on which its exclusion can be defended, in
view of the appellant's alleged failure to sound the whistle, con-
^med both in the complaint and in the appellee's evidence.

Tho concluding portion of the third instruction, given in this

^^aseto the jury at the request of the appellee, was as follows:

^ox\ may also inquire whether or not the city of Port Wayne

. » by an ordinance, required the defendant to keep a flagman at

***^ ^*x>88ing, to notify persons of the approach of cars and engines

^id crossing, and warn them of danger; for if there was such an

. ''^^'^ce, then the defendant could not fail or neglect to comply

rn ^^ requirements without being guilty of negligence.''

X. ^^ Hppellant sharply criticises as much of the instruction as is

thus ^^^ ^"^ *°*^ argues against the doctrine implied by the language

^^ ^orce and effect of a city ordinance regulating the running
^2^ tCianagement of railroad trains within the limits of the city,
^n a civil action against a railroad company, like the case before
^0, is a question upon which the authorities are not entirely in ac-
cord. But the weight of authority is overwhelmingly to the effect
that the failure to perform any duty imposed either by a statute or
an ordinance is negligence j^er se, and entitles an injured party to
recover, provided the failure was a proximate cause of the injury.
Thomp. on Neg. 419, 1232; Shearm. & Bedf. on Neg., §§ 484,
485.

Therefore to have made the third instruction, given as above,
properly and strictly applicable to this case, the jury ought also
to have been informed by it in some way, that to entitle the appel-
lee to recover for a failure to comply with the ordinance referred to,



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PeDDsylvania Ck>inpaD7 ^- Hensil.



8iioh failare must be shown to have been a proximate cause of the
injury complained of.

The appellee contends that a fair construction of the two preced-
iDg instructions^ when taken in connection with this third instruc-
tion, did so inform the jury, but whether that construction can be
sustained, we will not now inquire, as the conclusion we have reached
upon the case in other respects makes such inquiry at present un-
necessary.

One thing, however, in this connection, ought always to be borne
in mind, and that is, in all actions for negligent injuries, it is not
enough to show that the defendant has been guilty of negligence.
It must also be made to appear that the imputed negligence was a
proximate cause of the injury sued for. That fundamental rule
seems to have been, to some extent, at least lost sight of in several
of the instructions given in this cause.

By the sixth instruction, given at the request of the appellee,
tlie court said:

" If you find from the evidence that the train that struck the
plaintiff, if one did strike her, consisted of two cars and an engine;
that the two cars were being backed over the street; that there
were no brakes or brakemen on the front car as it passed over the
crossing, and no one in advance of the cars; that no bell was rung
as the train was backing over the street; that the crossing was in a
populous part of the city and much frequented by people continu-
ally passing over it — then you should find the defendant guilty of
negligence."

The facts enumerated in this instruction may or may not have
constituted negligence, depending upon other facts which may have
had some relation to the alleged injury to the appellee. As an
instruction it confounded that which under the circumstances only
tended to prove negligence with negligence itself. It assumed to
make a matter of law out of f&ctB which the jury were entitled
to consider in connection with other facts which had been submit-
ted to them.

The cases in which the question of negligence can be thus with-
drawn from the jury are of comparatively rare occurrence. It is
only when the circumst&nces of a case are such that the standard
of duty is fixed and certain, or when the measure of duty is defined
by law and is the same under all circumstances, or when the negli-
gence is so clearly defined and palpable that no verdict could make



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NOVEMBER TERM, 1880. 193

Zann v. Haller.

j).t otherwise, that the court is authorized to make the question of
negligence one of law and not of fact Thomp on Neg. 1236 ;
Shearm. & Redf. on Neg., § 11.

The court evidently erred in giving this sixth instruction.

This case affords a rather remarkable instance of what we too
often meet with in modern practice, and that is an over-instructed
jurj. Nineteen instructions were given at the request of the appel-
lee, four were given by the court on its own motion, and twenty-
seven were given at the suggestion of the appellant. As these
instructions will be necessarily reconsidered, and possibly very
greatly condensed, upon. another trial, we will not further comment
upon them in detail

The judgment below is reversed with costs, and the cause
remanded for a new trial.

Reversed and remanded.



Zakk v. Hallbb.

(H Ind. 138.)

JDeed-^ execution — signing hy christened name.

A mortgage is well executed by a married woman, signing bj her christened
name alone, her fall name appearing In the body of the instrument and the
acknowledgment.

FORECLOSURE. The opinion states the case- The plaintiff
bad judgment below.

/. H. Stotscnhurg and 8. 8. Johnson, for appellants.

BiDDLB, J. The appellee brought this suit on a promissory note
and a mortgage upon certain lands to secure its payment, praying
for judgment on the note and a decree of foreclosure upon the
mortgage.

The complaint avers that the note was executed by Rudolph

Zann, by the name of R. Zann, and that the mortgage was executed

by the said Zann by the name of R. Zann, and by '' Oatharine

l^nn, his wife, by the name of Catharine." The mortgage, which

Vol. XXXVI— 25



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194



INDIANA,



Zanu V . Haller.









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is made an exhibit, is dated the 26th day of Aagast, I8685 and
signed '^R. Zann; [Seal.J Catharine. [Seal.] " In the premises
of the mortgage the name of Catharine Zann is written in full. It
was acknowledged before a notary public by the makers, and the
acknowledgment certified by the notary in their full names,
Bndolph Zann and Catharine Zann.

A demurrer by Catharine Zann to tlio complaint for the alleged
want of facts was overruled. Rudolph Zann answered the com-
plaint in two paragraphs — denial and payment

Catharine answered as follows: '" For separate answer to the com-
plaint of tlie plaintiff hemnjthe said Catharine Zann says that she
is now, and was before, and on and ever since the 26th day of
August, 18GS, the lawful wife of her co-defendant, Rudolph Zann,
and she has been his wife for more than twelve years last past con-
tinuously; and she avers that she, the said defendant, never at any
time duly signed, sealed and acknowledged the said mortgage sued
on and attached to the complaint; and that her name is Catharine
Zann, and was such at the time the said mortgage was presented to
her for her signature ; that the exact circumstances were these:
She took her pen and wrote her Christian name, * Catharine,' only,
and no more, and she did not then and there, or at any time since.
write her surname ^ Zann ' thereto ; and by reason of her failure to
write her said surname the said signature was incomplete, and she
avers that she never did at any time sign the said mortgage — all
of wiiicli sh6 is ready to verify." This paragraph is sworn to by
Catharine Zann.

• The pla.^nt,iff replied to the second paragraph of Rudolph Zaun's
answer, and demurred for the want of facts to tho separate answer
of Catharine Zann. His demurrer was sustained and exceptions
reserved. Trial by the court; finding and judgment for the appel-
lee; appeal.

Tho assignments of error here are, overruling the demurrer to the
complaint, and sustaining the demurrer to the separate answer of
Catharine Zann.

The only question discussed in the briefs of the parties may be
stated as follows: Is the signing of Catharine Zann, by her Chris-
tian name ^' Catharine ^ only a sufficient execution of the mortgage
on her part?

There can be no doubt of the identity of Catharine Zann, as to
her being the person who signed the o^ortgage by the name of*



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NOVEMBER TERM, 1880. 195

Zann v. Haller.

•* Catharine'* alone, and who acknowledged its execution before
the notary public.

*' The object of names being merely to distinguish one person
from another, it seems to be sufficient if this is effected, though
the true name of the party be not used, or even no name at all.
The general principle of law is, id certum est quod cerium reddi
potest, and a man may be described by his office or his relationship
to a known pei*8on." 3 Washb. Real Prop. 236. By the common
law, deeds were executed by the seal of the grantor without any
signature. The statute 29 Charles II, c. 3, requires that in all
gmnts of lands the deed must be signed. 2 Bl. Com. 306. See
also our own statute, 1 R, S. 1876, p. 504, § 3.

In the case of Lemayne v. Stanley y 3 Lev. 1, where a testator had
written his will himself, and sealed it, but had not signed it, the
court held it sufficient. See also Warneford v. Warneford, Str. 764,
In the case of Baker v. Dening^ 8 A. & E. 94, it was held, that
under the statute of frauds, making a mark by the devisor, to a
will of real estate, is a sufficient signing ; and it is not necessary
to prove that he could not write his name at the time. See, also,
Ellis V. Smithy 1 Ves. 10; Harrison v. Harrison, 8 id. 185 ; Addy
v. Oriz, id. 504.

It has been held in New York, that where a party placed the
figures "1. 2. 8.," upon the back of a bill of exchange, by way of
substitute for his name, intending thus to bind himself as indorser,
it was a valid indorsement, though it appeared he could write.
Brown v. Butchers £ Drovers' Bank, C Hill, 443.

In California, it has been held that the execution of a deed by
Edward Jones, by the name of Edmond Jones, is sufficient. Mid*
dkton V. Findla, 25 Cal. 76. See also ColtOn v. Seavey, 22 id. 496,
and Tustin v. Fattght, 23 id. 237.

In this State, it has been held that the execution of a promissory
note by a mark preceding the name of the maker, without any
thing on the face of the note to show that it was the mark of the
maker, as follows : " Joseph Shank," is a sufficient execu-

tion of the note without witnesses. Shank v. Butsch, 28 Ind. 19.

As to what constitutes a legal name generally, see Schqfield ▼•
Jennings, 68 Ind. 232.

[Omitting another matter.]

Judgment affirmed.



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196



INDIANA,



Shockey ▼. lliUa.



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ShOOKBT y. MiLLB.

mind. 988.)

Ltmit a ti o n — ttoMe of ^promise when. suJfMeni t0 r €W ^ dAi.

To revive a debt discharged in bankraptcy, there most be a dear, distinct and
unequivocal promise to pay it, as distinguished from a promise implied from
an acknowledgment of the justness or existence thereof, and the mere
expression of an intention to pay the debt is not sufficient. (See n<4e, p. 197.)

ACTION on a promissory note. The opinion states the case.
The defendant had judgment below.

G. T. B. Carr, J. F. McDowell and 0. L. McDoweU^ for appel-
lants.

/. Van Devanterj /. W. Lctcey, R. W. Bailey and A. ZHUm, for

appellees.

WoRDEN, J. This action was commenced by Daniel Shookey
against the appellee. Mills, on a promissory note executed by the
latter to the former.

[Omitting immaterial statements.]

The defendant answered, first, by denial of the matters alleged;
and second, discharge in bankruptcy. Beplication of new prom-
ises.

Trial by jury, verdict and judgment for the defendant

[Omitting other matters.]

The court gave to the jury the following instruction, to which
exception was taken :

^' The promise, by which a discharged debt is revived must be
clear, distinct and unequivocal. There must be an expression by
the defendant of a clear intention to bind himself to the payment
of the debt. The new promise must be distinct, unambiguous and
certain. The expression of an intention to pay the debt is not
sufficient There must be a promise before the debtor is bound.
An intention is but the purpose a man forms in his own mind ; a
promise is an express undertaking or agreement to carry that pur-
pose into effect, and must be express, in contradistinction to a



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TJOVEMBER TERM, 1880. \^

Shockey V. Mills.

promise implied from an acknowledgment of the justness or exist-
ence of the debf

This charge, as applied to the case, viz., debts discharged by
bankruptcy, we think is entirely correct ; and it is supported by the
authorities. Blumenstiel Law and Practice in Bankruptcy, 661-2;
Bump's Bankruptcy (9th ed.) 748, and following.

There is no error in the record.

The judgment below is affirmed, with costs.

Judgment affirmed.

KorBBTTRBRKPOBTBR.— SeeuilZenT.CoKirMiTOMo. 138; s.c.,85Am.Bep.416andnote,417,

^^o^tocfegy. Chadvoieh, 71 Me. 818, it was held that a promise to settle '^whenlamatile^

^^ Bufflcieiit to revive the debt, without proof of the defendant's ability to paj. The

^^''^ said: '* When a new promise is relied on to take a debt but of the operation of t^e

^^^te of limitations, and the new promise is a conditional one, the plaintiff cannot re-

^uoT*^ ^068 he proves performance of the condition. Proof of the promise only, is not

^ 2^^^ Tbusapromise to pay * as soon as I can * UTanner v. Smart, 6 B. & C. 602; 9J}.&

hf^^^^i ^ * when able * (Davies v. Smithy 4 Esp. 86) ; or * I shall be most happy to jiay you

^^!/^ ^terest and principal as soon as convenient * {Edmunds v. Doumcs^ 8 C. & M. 469 ; 4

^ a^i?'^ ' ^^ * ^**®" *^' abUity ' (Scales v. Jacjb, 8 BIng. 648 ; 11 Moore, 568); or * I wiU pay

ll^j^^^ AS it is in my power to do so ' (Hay don v. WiUiams, 4 M. & P. 811) ; or * I should be

to^'*^^ fco pay It If Icould' (Ayton v. BoU, 13 Moore, 806; 4 Bing. 105); or 'I am going

J», t^ '^ th^ course of the week, and will help you to £5 if I can * (Oould v. Shirley, 2 M. &

fo,. , ; • <*«" * If EL will say I had the timber I will pay for it,* or * prove it by E. and I will pay

«j^ 8Qr^ ^'^^^^^ins V. Otis, 1 Pick. 868 ; 8 id. 68) ; or * I have not the means now, but will pay

^<^** ^** ^ ^^"^ ' (Tompki}i8 V. Brtyum, 1 Den. 247) ; will not take a case out of the statute

iH^? **l>On proof of performance of the condition. Proof of the promise only is not suffl-

Gt^ ^^^<9^ V. WOkimon, 2 Wash. C. C. 614; Lonsdale v. Brown, 8 Id. 404; KampshaXl v.

it^**- CMcL.180.-
^ere h *"' '^^ ^' Seymour* Wisconsin Supreme Court, May, 1881, the following written words
y^^ ^*<1 Insufficient: ** I think I see my way clear to pay you the $200 and interest I owe
^ prAsta^*^^ ^^ hopes another two years will enable me from my present income to dear off
Ij^JjT^Jf*^*^^ debts. Rest assured that not a day of i>ecuniary freedom will pass over my

Ijj jyZ^'*'^"' y^^ hearing from me,"
njy co^****^** ^' ^^''"*'^» ** ^iisa, 148, the promise was in writing as follows: "It would suil
htued -J^^**^°ce to execute my note for the balance due for rent, payable Januaiy 1, 1877 *•
ackno^,^?**^ signed. Held, insufficient. The court said: **The writing offered to prove an
**^t r^^^^^J^^^^^^ment of the claim by defendant Is too vague and indefinite to have that effect.*
not Bta^^ ^^ot identify the debt referred to. It mentions a balance due for rent, but does
To aIlc>^B^ ^«'h«n, nor from what, nor to whom the rent accrued, nor what the balance was.
lug gj^ ^^_ ^^n these things to be proved by parol would produce the evU the statute require
to Dre-^a^'^^^^o^l^^^Srment or promise In writing to save the bar of the statute was intended

*«eta o^^^**® ^^ *" administrator to pay as soon as the noney could be realized from the
he an x»w ^^® intestate, /i«W, insufficient. Hanson v. Towle, 19 Eans.278. There** must
^Igj^le^^^^iiiallfled and direct admission of a present existing debt on which the party Is

Itt ^«^^ "^^^^^ ^® ^ willing to pay."
^«^^**0*cicfc V. Oerding^ 66 Ga. 864, the defendant wrote, requesting the withdrawal of a
^]Ou^^^^ adding: * ' I cannot pay for the present. As soon as I have the money I shall



ll^^i



Heid, hisufflcient.
^^^^**oaid V. Archibald, 78 N. Y. 189, on the 1st of January, 1861, deftodaat was In-
H^J^^ V> plaintiff $1,600 for money loaned. Nothing was paid thereon except the sum of
IP^^^^^ Januaiy, 1866. In August, 1872, defendant signed and delivered to plaintiff a



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Neidefer v. Cbastain.



writing, without date, in these words: *' Received Januaiy, 1881, from Um* J. R- Klocftid,
the sum of $1,600, for which I agree to pay interest at the rate of seven per cent from this
date. Paid January, 1806, to Ifrs. Kincaid on the above, $900/* Held, that parol evidence
was competent to show when the instrument was executed ; and held, that it was a sufflcieot
acknowledgment and promise to pay to talce the case out of the statute of limitations.

See Simonton v. CZar/c, 65 N. C. 526 ; s. c, 6 Am. Rep. 753; Miller v. Baachnre^ 83 Peon.
St. 856 ; s. o.. 34 Am. Rep. 187; Chambers v. Rubey, 47 Mo. 99; a. o., 4 Am. Rep. 81$.



Nbidefer V. Chastaik.

Cn Ind. 868.)

Fraud — representations — damoffSi.

ta an action on a note given for the right to sell a patented grain screen, the
answer alleged that the assignor falsely and fraodolently represented that
such screen was of great value, and that it would clean wheat rapidly and
effectually, and that it could be bought at S. for five dollars ; that such rep-
resentations were false and known to be false ; " that the defendant regarded
them as true; that said screens were of no value, and would not clean wheat
rapidly and effectually, and could not be got atS. for five dollars, and were
utterly worthless for the purpose for which the same were parchased.**
Held, insufficient.



%\



ACTION on a promissory note. The opinion states the
The defendant had judgment below.






iS. B. Voyles, for appellant
A. B. CoUinSf for appellee.



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Elliott, J. The complaint of appellant is upon a promissory
note executed by tlie appellee to one Orange Brown.

The appellee answered the complaint in three paragraphs. The
first paragraph pleaded a want of consideration; the second and
third alleged that tlie note was obtained by the false and fraudu-
lent representations of the appellant's assignor. The appellant
demurred to the last mentioned paragraphs. His demurrer was
overruled, and of this ruling he now complains.

The second and third paragraphs are in all material respects the
lame^ and there is no necessity for a separate consideration of each.

The material facts which the answer states may be summed op



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NOVEMBER TERM, 1880. 199

Neidefer v. Chastaizu

rabst^rfctially as follows: That the note was given for a deed con-
Yeyirig- c^ Tight to sell an improved and patented grain screen in the
county of Jefferson; that appellant's assignor, Orange Brown,
falsely ^r^d fraudulently represented to the appellee that the screen
was of" g-x-eat value; that it would clean wheat rapidly and effectu-
aHy; ■tl:i^t the screens could be bought at Salem for five dollars ;
that stioli representations were false, and known to be false; ''that



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