questions where the evidence was not sufficient, but no suggestion seems to have been made that any portion of the questions put to the jury were improper. Whatever may be the view of such practice taken by the courts of other states, we are unwilling to give our countenance to its adoption here.94

In the present case the defendant's counsel prepared and submitted fifteen questions of fact upon which the court was asked to require the jury to make special findings. Of these the eleventh and twelfth were refused. The first was modified and submitted to the jury in its modified form. The residue of the questions were submitted as asked. We do not understand that the defendant is now complaining of the action of the court in relation to its eleventh and twelfth questions of fact. The first, as prepared by the defendant's counsel, was as follows:

1. "What precaution did the deceased take to inform himself of the approach of the train which caused the injury?"

This was modified by the court so as to read as follows:

1. "Was the deceased exercising reasonable care for his own safety at the time he was killed?"

The ultimate fact which it was incumbent upon the plaintiff to prove, and which the defendant sought to disprove, was, that the deceased, at the time he was killed, was in the exercise of due care. That was one of the issues made by the pleadings, and it was one of the ultimate facts upon which the plaintiff's right to recover necessarily depended. What the deceased did to inform himself of the approach of the train was material only as tending to show reasonable care on his part or the want of it. His acts in that behalf, then, whatever they may have been, were facts which were merely evidential in their nature, and while they doubtless would have had a tendency to prove reasonable care or the contrary, there were none of them, so far as the evidence shows, which would have been conclusive of that question. The question, then, as submitted by the defendant's counsel, sought to obtain a finding as to mere probative facts, and the court, therefore, properly refused to require the jury to answer it. The question substituted by the court submitted to the jury a material and controlling fact, and one which could be properly made the subject of a special finding."

95

"Ward v. Busack, 46 Wis. 407, I N. W. 107 (1879); Haney Co. v. Association, 119 Iowa 188, 93 N. W. 297 (1903); Evans v. Moseley, 84 Kans. 322, 114 Pac. 374 (1911); Rogers v. Kansas Co-Operative R. Co., 91 Kans. 351, 137 Pac. 991 (1914). The Michigan statute limits the number of questions to five. Mich.: Howell's Ann. Stats. (1913), § 12943.

95"Each question submitted should be limited to a single direct and material controverted issue of fact, and in such a way that the answer will necessarily be positive, direct and intelligible." Jewell v. Railroad, 54 Wis. 610, 12 N. W. 83, 41 Am. Rep. 63 (1882); Morse v. Morse, 25 Ind. 156 (1865); Germaine v. Muskegon, 105 Mich. 213, 63 N. W. 78 (1895); Morbey v. Chicago, &c., R. Co., 116 Iowa 84, 89 N. W. 105 (1902); Drum-Flato Co. v. Edmisson, 208 U. S. 534, 28 Sup. Ct. 367, 52 L. ed. 606 (1907); Springfield C. M. Co. v. Gedutis, 227 Ill. 9, 81 N. E. 9 (1907); People v. Commercial Ins. Co., 247 Ill. 92 (1910); Kuchler v. Stafford, 185 Ill. App. 199 (1914). But questions may be allowed the answers to which will establish probative facts from which an ultimate material fact may be inferred as a matter of law. Gale v. Priddy, 66 Ohio St. 400, 64 N. E. 437 (1902).

CHICAGO & N. R. CO. V. DUNLEAVY

469

Complaint is made to the answers given by the jury to the fourth and fifth questions. Those questions were as follows:

4. "Did the deceased look to ascertain if said train in question was approaching?"

5. "Did the deceased listen to ascertain if said train was approaching?"

To both of these questions the jury answered: "Don't know." It is, perhaps, questionable whether the defendant, in order to avail itself of the objection that no proper answer was made to these questions, should not have made it at the time the verdict was returned and before the jury was discharged, for then the jury might have been required to complete their verdict by making proper answers. Moss v. Priest, 19 Abb. Prac. (N. Y.) 314.96 But, however that may be, it is manifest that the error, if it be one, can not have been prejudicial to the defendant unless it can be seen that answers to said questions most favorable to the defendant, which of course would have been answers in the negative, would have constituted a finding inconsistent with the general verdict.

If, then, we treat said questions as having been answered in the negative, would such answers, either alone or in connection with the answers to the other questions, have constituted a finding necessarily inconsistent with the general verdict? To the second question, viz., "If the deceased had looked before the accident, could he have discovered the approach of the train in time to have avoided the accident?" the jury answered, "Yes," and to the third question, viz., "If the deceased had listened before the approach of said train, could he have discovered the approach of the train in time to have avoided the accident?" they answered, "If he had concentrated his attention. in that particular direction, yes." The first question, viz., "Was the deceased exercising reasonable care for his safety at the time he was killed?" was also answered, "Yes."

The question then presents itself, whether, if it be admitted that the deceased neither looked nor listened for the train, and also that if he had looked he could have seen it, and if he had listened with his attention concentrated in that direction, he could have heard it in time to avoid the accident, such facts would constitute such conclusive proof of contributory negligence on the part of the deceased as would have barred a recovery. Undoubtedly a failure to look or listen, especially where it affirmatively appears that looking or listening might have enabled the party exposed to injury to see the train and thus avoid being injured, is evidence tending to show negligence. But they are not conclusive evidence, so that a charge of negligence can be predicated upon them as a matter of law. There may be various modifying circumstances excusing the party from looking or

"Buntin v. Rose, 16 Ind. 209 (1861); Summers v. Greathouse, 87 Iná. 205 (1882); Dyer v. Taylor, 50 Ark. 314, 7 S. W. 258 (1887); Fisk v. Chicago, &c., R. Co., 74 Iowa 424, 38 N. W. 132 (1888); Chicago, &c., R. Co. v. Goyette, 133 Ill. 21, 24 N. E. 549 (1890).

listening, and that being the case, a mere failure to look or listen can not, as a legal conclusion, be pronounced negligence per se.97

In determining whether the special findings are inconsistent with the general verdict so that the latter must be held to be controlled by the former, this court can not look at the evidence. All reasonable presumptions will be entertained in favor of the verdict, while nothing will be presumed in aid of the special findings of fact. The inconsistency must be irreconcilable, so as to be incapable of being removed by any evidence admissible under the issues. Pennsylvania Co. v. Smith, 98 Ind. 42; McComas v. Haas, 107 Ind. 512; Redelsheimer v. Miller, 107 Ind. 485. Under these principles it must be held that there is no necessary or irreconcilable inconsistency between the special finding and the general verdict, especially in view of the fact that the jury, notwithstanding their finding that the deceased did not look or listen, also found that he was in the exercise of reasonable care.

Biesiada and others petitioned for the construction of a public drain under section 2 of the Act of March 11, 1907. Acts, 1907, p. 508, section 6141, Burns, 1908. The matter was referred to commis

"Terre Haute & T. R. Co. v. Voelker, 129 Ill. 540, 22 N. E. 20 (1889); Toledo, &c., R. Co. v. Cline, 135 Ill. 41, 25 N. E. 846 (1890); Lewis v. Long Island R. Co., 162 N. Y. 52, 56 N. E. 548 (1900). Compare North Penn. R. Co. v. Heileman, 49 Pa. St. 60, 88 Am. Dec. 482 (1865); Pennsylvania R. Co. v. Beale, 73 Pa. St. 504, 13 Am. Rep. 753 (1873), and see Patterson's Railway Accident Law, §§ 173-183.

Special findings are to be reconciled with the general verdict if they reasonably can be. But where the special findings are inconsistent with and antagonistic to the general verdict, the former control and judgment_must be entered in accordance with the special findings. Indianapolis, &c., R. Co. v. Stout, 53 Ind. 143 (1876); Trevor v. Hawley, 99 Mich. 504, 58 N. W. 466 (1894); Kennedy v. Ball, 91 Hun (N. Y.) 197, 36 N. Y. S. 325 (1895); Troy v. Brady, 67 Ohio St. 65, 65 N. E. 616 (1902); Awde v. Cole, 99 Minn. 357, 109 N. W. 812 (1906); Hawley v. Bond, 20 S. Dak. 215, 105 N. W. 464 (1905); Connell v. Electric Co., 131 Iowa 622, 109 N. W. 177 (1906); Court of Honor v. Dinger, 221 Ill. 176, 77 N. E. 557 (1906); Pittsburgh, &c., R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033 (1906); Plyer v. Pacific P. C. Co., 152 Cal. 125, 92 Pac. 56 (1907); Osburn v. Railway Co., 75 Kans. 746, 90 Pac. 289 (1907); Ft. Wayne C. Co. v. Page, 170 Ind. 585, 84 N. E. 145 (1908); Havlik v. St. Paul F. & M. Co., 87 Nebr. 427, 127 N. W. 248 (1910); Morrow v. Bonebrake, 84 Kans. 724, 115 Pac. 585 (1911); Caledonia County Grammar School v. Kent, 86 Vt. 151, 84 Atl. 26 (1912); Ellison v. Greenville & S. R. Co., 94 S. Car. 425, 77 S. E. 123, 78 S. E. 231 (1913); Sare v. Hoadley Stone Co., 57 Ind. App. 464, 105 N. E. 582 (1914); Duckworth v. Stalnaker, 78 W. Va. 247, 81 S. E. 989 (1914).

SMITH V. BIESIADA

471 sioners who made a report, to which William Smith filed a remonstrance. A trial by the court resulted in findings for Smith on certain grounds and other findings in favor of the petitioner. Judgment was rendered modifying the commissioners' report. Smith appealed, assigning as error the overruling of his motions (a) for a new trial, (b) to dismiss the proceeding, (c) for a venire de novo, (d) in arrest of judgment."9

MONTGOMERY, J.: The motions to dismiss, for a venire de novo, in arrest of judgment, were all made after the judgment establishing the drain had been rendered, and the motion for a new trial overruled. It is very clear that the court could not then entertain a motion to dismiss the cause.1

A motion for a venire de novo must be made before judgment is rendered on the verdict or finding.2

A motion in arrest of judgment must be made before rendition of the judgment sought to be arrested.

It follows that the court did not err in overruling these motions.
Judgment affirmed.*

"A part only of the case is printed.

'Burns' Annotated Statutes of Indiana (1914), § 340. See Tooker v. Arnoux, 76 N. Y. 397, 20 Alb. Law J. (1879); Ames' Cases on Pleading (2d ed.) 269 and notes.

Citing 2 Elliott, Gen. Prac., § 985; Shaw v. Merchants' Bank, 60 Ind. 83 (1877); McClintock v. Theiss, 74 Ind. 200 (1881); Deatty v. Shirley, 83 Ind. 218 (1882); Potter v. McCormack, 127 Ind. 439, 26 N. E. 883 (1891); Bennett v. Simon, 152 Ind. 490, 53 N. E. 649 (1899); Sloan v. Lick Creek Co., 6 Ind. App. 584, 33 Ñ. E. 997 (1893); Cannon v. Castleman, 24 Ind. App. 188, 55 N. E. 111 (1900); McCaslin v. State, 38 Ind. App. 184, 75 N. E. 844 (1906). For the distinction between a venire de novo and a new trial see Witham v. Lewis, 1 Wils. 48, 53 (1744); Tidd's Practice (2 Am. ed.) 953, and Butcher v. Metts, I Miles (Pa.) 233 (1836) infra.

"Citing Train v. Gridley, 36 Ind. 241 (1871); Hilligos v. Pittsburgh R. Co., 40 Ind. 112 (1872); Brownlee v. Hare, 64 Ind. 311 (1878); Eastes v. Eastes, 79 Ind. 363 (1881); Potter v. McCormack, 127 Ind. 439, 26 N. E. 883 (1891); Smith v. State, 140 Ind. 343, 39 N. E. 1060 (1894); Bayless v. Jones, 10 Ind. App. 102, 37 N. E. 421 (1894).

'III Blackstone's Commentaries 386; Tidd's Practice, 934 et seq.; I Troubat & Haly's Practice (Wharton's ed.), 525. The party who has obtained a verdict is, in theory, immediately entitled to judgment. Van_Riper v. Van Riper, 4 N. J. L. 156, 7 Am. Dec. 576 (1818); Hutchinson v. Bours, 13 Cal. 50 (1859), but, by the practice in the Court of King's Bench, it was incumbent upon the prevailing party to enter a rule for judgment nisi causa, which rule expired in four days, and if at the end of four days no sufficient cause was shown to the contrary, judgment could be signed. Rex v. Elkins, 4 Burr. 2129 (1767); Roberts v. Stacey, 13 East. 21 (1810); Willis v. Bennett, Barnes 443 (1737); Reynolds v. Simonds, Barnes 446 (1739). Under the modern English rules an application for a new trial is by fourteen days' notice of motion, served within ten days after the trial, order XXXIX, rule 4.

In the United States, statutes and rules of court usually fix the time for entry of judgment on verdicts and the time within which motions for new trial, for judgment non obstante veredicto and in arrest of judgment should be made. I Black on Judgments (2d ed.) 121; Goodrum v. Grimes, 185 Mass. 80, 69 N. E. 1053 (1904); N. Y. Code Civ. Proc., §§ 999-1000; Thayer Mfg. Co. v. Steinau, 58 How. Pr. (N. Y.) 315 (1880); Dillon v. O'Neal, 26 R. I. 87, 58 Atl. 455 (1904); 13 P. & L. Dig. of Pa. Dec. 23079. Pending the disposition of such a motion the entry of judgment is generally held irregular. Stevenson v. Sherwood, 22 Ill. 238, 74 Am. Dec. 140 (1859); Louisville Chemical Works v. Commonwealth, 8 Bush. (K. Y.) 179 (1871);

(a) New Trial.

California Code of Civil Procedure, § 657.

The former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors;

3. Accident or surprise, which ordinary prudence could not have guarded against;

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial;

5. Excessive damages, appearing to have been given under the influence of passion or prejudice;

6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law;

7. Error in law, occurring at the trial and excepted to by the party making the application."

Moravian Seminary v. Bethlehem, 153 Pa. St. 583, 26 Atl. 237 (1893); Louisville v. Muldoon, 19 Ky. L. 1386, 43 S. W. 867 (1897); Schmidt v. Terry, III Fed. 290 (1901). But, with rare exceptions, a motion for new trial made after the prescribed time has elapsed and judgment has been entered will be denied. Ewing v. Tees, I Binn. (Pa.) 450, 2 Am. Dec. 455 (1808); Syracuse &c. Oil Co. v. Carothers, 63 Pa. St. 379 (1869); State v. McGowan, 62 Mo. App. 625 (1895); Nelson v. Farmland Security Co., 58 Nebr. 604, 79 N. W. 161 (1899); Hill v. Harder, 3 Pa. Super. Ct. 473 (1897); Hannum v. Belchertown, 19 Pick. (Mass.) 311 (1837); Allen v. Adams, 150 Ind. 409, 50 N. E. 387 (1897); Wilson v. Dallas, 84 Nebr. 605, 121 N. W. 1128 (1909); Walker v. Blake, 13 Ariz. 1, 108 Pac. 221 (1910); Mann v. Dempster, 181 Fed. 76 (1910); Rosner v. Cohn, 81 N. J. L. 343, 79 Atl. 1056 (1911). Compare Emma Silver Min. Co. v. Park, 14 Blatch. (U. S.) 411 (1878); Ellis v. Hearn, 132 App. Div. 207, 116 N. Y. S. 977 (1909); Okazaki v. Sussman, 79 Wash. 622, 140 Pac. 904 (1914). Similar rules apply to motions for judgment non obstante veredicto, which must be made after verdict and before judgment. Mississippi v. Manchester Commercial Bank, 6 Sm. & M. (Miss.) 218 (1846); Rohrbacker v. Pugh, 10 W. N. Cas. (Pa.) 275 (1881); Marshalltown S. Co. v. Des Moines B. Co., (Iowa) 101 N. W. 1124 (1905), and to motions in arrest of judgment. Burrall v. DuBois, 2 Dall. (U. S.) 229, 1 L. ed. 360 (1795); State v. Leathers, 61 Mo. 381 (1875); Keller v. Stevens, 66 Md. 132, 6 Atl. 533 (1886); Smith v. State, 140 Ind. 343, 39 N. E. 1060 (1894); Lodge v. O'Toole, 20 R. I. 300 (1897); Marshall v. Davis, 122 Ky. 413 (1906). Compare Sullivan v. New Bedford Sav. Inst., 140 Mass. 260, 6 N. E. 83 (1885); Fiscle v. Kissinger, 53 Pa. Super. Ct. 453 (1913).

"In many of the practice acts of the various states the grounds for new trials are, as in the California Code, expressly enumerated; in others this enumeration is omitted and it is provided that new trials may be granted for