Shell v. The State. McDonald, 106 Ind. 233; State v. Patterson, 116 Ind. 45; Myers v. State, 121 Ind. 15; Fleming v. State, 136 Ind. 149; Armstrong v. State, 145 Ind. 609. But counsel for the appellant say that these cases are unsound, in that their construction of the above quoted provision of the statute brings it in conflict with section 1807, Burns' R. S. 1894 (1738, R. S. 1881), which provides that "The precise time of the commission of an offense need not be stated in the indictment or information, but it is sufficient if shown to have been within the statute of limitations," etc. The cases above cited stand upon the plain words of the statute, and if out of harmony with the latter provision in its apparent meaning, we should first look for a construction of the latter provision harmonizing with the former. This may be found in the construction that it, like section 1825, is in aid of a liberal construction of criminal pleading and, while not requiring a statement of the time of the commission of the offense, renders sufficient a statement which may not be precise. This, we have no doubt, is the proper construction of this provision, and the cases cited are properly decided. The second, third, and fourth counts are not bad upon the ground so urged. It is further insisted that the counts were each bad in not charging that a lawful oath was taken by the appellant in making the affidavit constituting the alleged perjury. This insistence is supported by the one proposition that the information does not charge that a prosecution was commenced, or that legal proceedings were pending, and Smith v. State, 125 Ind. 440, is cited as supporting the proposition. It is charged that the appellant went before the mayor of the city of Peru and made oath to an affidavit charg ing one Barnard with the offense of larceny, and did Shell v. The State. so for the purpose of procuring from said officer a warrant for the arrest of said Barnard upon said charge. A careful reading of the case of Smith v. State, supra, will disclose the distinction between that case and the present. Here the false affidavit was presented to, and an oath was made thereto before the officer who possessed the authority, and who was desired by the appellant, to issue a warrant for the arrest of Barnard. The act was the initial step in a prosecution for larceny, and was taken for the purpose of making it effective. So far as the appellant may bave repented of his purpose, or may have been dissuaded from, or denied it, by the mayor or any other, could not atone, legally, for the offense thus completed. In the case of Smith v. State, supra, the false affidavit was made before a notary public, who possessed no authority to act upon it, in the sense of a legal proceeding, and it was not charged to have been made with a view to the commencement of a legal proceeding. It was not necessarily a step in any legal proceeding. The indictment was wholly deficient, as there held, in the charge of the materiality of the false matter. We do not believe it was in that case intended to decide that a false oath may not become the subject of a proscution for perjury, where the oath is required by law, unless the oath has been acted upon in a legal proceeding. If the appellant had filed the affidavit with the mayor and no steps had been taken upon it, no warrant issued, no file mark placed upon it, nevertheless the false oath, made for the purpose of procuring legal steps, should be as effective, in characterizing the act as criminal, as if the filing had been marked upon the affidavit, a warrant had been issued, and an arrest had been made. Nothing remained for him to do to make his oath effective. When made for the purpose of procuring effective legal action, the Young v. Citizens' Street Railroad Company. act being one required by law, and that legal action depending, not upon the affiant, but upon the officer, it is sufficient upon which to charge perjury. Finding no error in the record the judgment is affirmed. YOUNG v. CITIZENS' STREET RAILROAD COMPANY. [No. 17,957. Filed Oct. 13, 1896. Rehearing denied May 21, 1897.] STREET RAILROADS.-Special Verdict.-Contributory Negligence.— A special verdict finding that plaintiff upon first approaching a track looked attentively for an electric street car, but saw none, although he saw for a distance of four hundred feet from him, and that he afterwards walked twenty-five feet beside the track without looking again, when he was struck by a car going at the rate of twelve miles an hour, and that there was nothing at any time to prevent his seeing and hearing, fails to show that plaintiff was free from contributory negligence. pp. 56, 57. SAME.-Person on Track must Look and Listen.-One is guilty of contributory negligence in walking upon or attempting to cross an electric street railway track without looking and listening. pp. 58-60. SAME.-Injury to Person on Track.-A person who is engaged in laying pipe for a gas company in a trench about three feet from the track of a street railway company, and, in performing his duties as an employe of the gas company, walks upon the track of the street railway company, will be regarded as an ordinary traveler, and is bound to the observance of ordinary care for his own safety. pp. 60-62. NEGLIGENCE.-When a Question of Law.-Where the facts are undisputed, and the inferences which may be drawn from them are unequivocal and can lead to but one conclusion, the court will adjudge, as a matter of law, that there is, or is not, negligence. pp. 62, 63. From the Hancock Circuit Court. Affirmed. J. E. McCullough, H. N. Spaan, R. A. Black and Christian & Christian, for appellant. W. H. Latta, W. H. H. Miller, F. Winter and J. B. Elam, for appellee. Young v. Citizens' Street Railroad Company. MCCABE, J.-This was an action begun by the appellant against the appellee in the Superior Court of Marion county to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant. The venue was changed to the Hancock Circuit Court where the issues were tried by a jury resulting in a special verdict under the recent statute, assessing the plaintiff's damages at $12,500.00 conditionally. The circuit court overruled the plaintiff's motion for judgment in his favor on the special verdict, and sustained the defendant's motion for judgment thereon in its favor, and rendered judgment accordingly; and the only error assigned is upon these rulings. The only question presented by the briefs for our decision is whether the special verdict finds facts sufficient to show that the plaintiff was free from fault or negligence contributing to his injury. He had alleged in his complaint, without which, or the substantial equivalent thereof it would have been totally insufficient, that he "did not in any manner by any negligent conduct or fault on his own part contribute to the injuries" complained of. The special verdict is very long consisting of 156 questions and answers thereto; therefore, only the substance thereof will be given. Such substance is as follows: The defendant owned and operated an electric street railway on West Washington street running east and west in the city of Indianapolis, Indiana, extending west beyond White river, during the month of May, 1894. The line was double tracked in the middle of said street, eighty feet wide from property line to property line. The trolley wires conveying the electric power were hung on iron poles eighteen feet high, five inches in diameter at the top of the ground and three inches at the top of the poles, standing 125 feet apart, Young v. Citizens' Street Railroad Company. equidistant between the double tracks, such tracks being four feet ten inches apart. The gauge of the street-railroad tracks was four feet and eight and onehalf inches. There was a gang of men working for the Manufacturers' Natural Gas Company putting gas pipe into a trench dug about three feet north of and parallel with the north track of said street-car line. The street cars ran west on the north track and east on the south track. One of the defendant's cars running east on the south track of said line on the 15th day of May, 1894, struck appellant and inflicted the injury complained of. It seems to be conceded that the motorman was guilty of negligence in not sounding the gong as it is called, on approaching the appellant so as to warn him of danger. The car was going at the rate of speed of ten to twelve miles an hour. For a distance of 200 feet west of the point of said collision the tracks descended three inches. Just before the collision, the plaintiff quit his work, and walked south, near to the north rail of the south track, opposite to where he had been working, and looked attentively to the west to see if any car was coming from that direction on the south track. He saw 400 feet west. There was a street car coming east. There was nothing to obstruct his vision or prevent his seeing a car coming east on Washington street. After plaintiff walked to a point near the north rail of the south street-car track he turned and walked toward the east, twenty-five feet. After he started to walk east along or near the north rail of the south track, until he was struck by the street-car, he did not look to the west for an approaching car. The motorman did not see him or give any warning. When he last looked west the car was 528 feet west of him. After the plaintiff quit work, and before |