with the purpose of procuring votes for ap with such a degree of certainty, that the pellee. court may pronounce judgment upon a conviction according to the right of the case." Section 2062, Burns 1908.

[10] The eleventh section of said Corrupt Practices Act (Acts 1911, p. 298) contains no exceptions, but every one is made guilty of corrupt practices who gives anything of value to any person for the purpose of influencing the vote of any one at an election or primary election. In the fifth section of said act (Acts 1911, p. 298), there is a proviso to the effect "that a candidate may pay personally in addition to said sum or valuable thing or things amounting thereto, his own expenses for postage, letters, circular letters, telegrams, telephoning, stationary, printing, advertising, publishing, expressage, traveling, board." It is well established in this state that an indictment need negative only those exceptions which are closely connected with the enacting clause or in the same clause that creates the offense. Where the exception comes by way of proviso or is contained in a different section of the statute it is not necessary to show by negative averment that the defendant was not within the exception, but the exception in such case is a mere matter of defense. Witty v. State, 173 Ind. 404, 90 N. E. 627, 25 L. R. A. (N. S.) 1297; State v. Barrett, 172 Ind. 169, 87 N. E. 7; State v. Weller, 171 Ind. 53, 85 N. E. 761; Yazel v. State, 170 Ind. 535, 84 N. E. 972; Ferner v. State, 151 Ind. 247, 51 N. E. 360; Russell v. State, 50 Ind. 174; Alexander v. State, 48 Ind. 394; Brutton v. State, 4 Ind. 601; Colson v. State, 7 Blackf. 590; State v. Closser, 99 N. E. 1057, and cases cited.

[11] The only other contention of appellee in regard to the sufficiency of the second count of the indictment, which has not been covered by what has been said in regard to the first count is that said second count should have shown the particular election to which the primary was preliminary. We think that a reading of the statute upon which the count is based makes it clear that such an allegation is unnecessary.

"No indictment or affidavit shall be deemed invalid nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding be stayed, arrested or in any manner affected for any of the following defects: First. For a mistake in the name of the court or county, in the title thereof. Second. For want of an allegation of the time or place of any material fact when the venue and time have once been stated in the indictment or affidavit. Third. That dates and numbers are represented by figures. Fourth. For any omission of any of the following, viz.: 'With force of arms,' 'contrary to the form of the statute,' or 'against the peace and dignity of the state of Indiana.' Fifth. For an omission to allege that the grand jurors were impaneled, sworn and charged. Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged. Seventh. For the omission of the words 'As appears by the record.' Eighth. For omitting to state the time at which, the offense was committed, in any case in which time is not the essence of the offense, or for stating the time imperfectly, unless time is of the essence of the offense. Ninth. For omitting a statement of the value or price of any matter or thing or the amount of damages or injury in any case where the value or price or the amount of damages or injury is not the essence of the offense. Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Section 2063, Burns 1908.

We are of the opinion that each count of the indictment is sufficient, and the court erred in sustaining the motion to quash the

same.

The judgment is therefore reversed, with instructions to the court below to overrule the motion to quash each count of the indictment.

April 18, 1913.)

(55 Ind. App. 216)

Fortunately this court have been given rules, by legislative enactment, for the construction of criminal pleadings and declaring what shall be a sufficient indictment. "The indictment of affidavit is sufficient if it can be understood therefrom: First. That the indictment was found by the grand jury of the county, or the affidavit presented by the VIRGIN ▾. LAKE ERIE & W. R. CO. et al prosecuting attorney of the circuit in which (No. 7,886.)1 the court was held. Second. That the de- (Appellate Court of Indiana, Division No. 1 fendant is named or described, in an indictment, as a person whose name is unknown 1. TRIAL (§ 194*)-INSTRUCTIONS. to the grand jurors, or, in an affidavit, un-jury as to the law applicable to the case, and Instructions should correctly inform the known to the prosecuting witness. Third. let them determine the facts from the evidence. That an offense was committed within the [Ed. Note.-For other cases, see Trial, Cent. jurisdiction of the court, or is triable there- Dig. $$ 413, 436, 439-441, 446-454, 456-466; in. Fourth. That the offense charged is Dec. Dig. § 194.*] clearly set forth in plain and concise lan- 2. RAILROADS (§ 301*)-HIGHWAY CROSSINGS. The rights of a railroad company at a pubguage, without necessary repetition. And lic crossing and of a person lawfully using the Fifth. That the offense charged is stated highway are equal, except as to the company's For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 1 Rehearing denied. Transfer to Supreme Court denied.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ing that there was no law of the state requiring the engineer to sound a whistle on the locomotive between a depot and a crossing was misleading, though the depot was over 60 rods from the crossing, where there were obstructions on approaching the crossing and the train was running fast, even though the statute alone would not require the blowing of the whistle.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.*]

18. RAILROADS (§ 303*)-HIGHWAY CROSSINGS

-RESTORATION BY COMPANY.

If a railroad used plank at a highway crossing, it would be required to use reasonable care and skill to make the crossing as safe therewith as it was when the highway was interfered with under Burns' Ann. St. 1908, § 5195, cl. 5, requiring the company to restore the highway to its former state, or in a manner so as not to unnecessarily impair its usefulness.

the railroad. The other streets which cross the railroad are west of said road, and in their order are named Harold, Center, Clinton, and Adams. Main street runs east and west through the town, and is the first street south of the railroad. North street runs in the same direction, and is north of the railroad. The main track of appellee's road is the one farthest north, the next is known as the passing track, and the one farthest

north is called the house track.

Appellant was a farm hand, and on the day of his injury was hauling corn to one of said elevators. At the time of, and just prior to, the accident, all of said tracks were occupied by trains, four in number. A westbound freight train consisting of 41 cars and a caboose stood on the passing track with

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 959-963, 966, 967; Dec. Dig. the engine west of Clinton street and its 303.*]

caboose extended to the center of the Blasdell road, and left 8 feet of the crossing

Appeal from Circuit Court, Benton County; plank unobstructed. An east-bound freight Jas. T. Saunderson, Judge. train was on the house track, and its rear Action by Stanley Virgin, by his next cars were west of Adams street. The enfriend, Manford Virgin, against the Lake gines of these two trains overlapped. A westErie & Western Railroad Company and oth-bound passenger train had entered, and was ers. From the judgment, plaintiff appeals. Reversed, with instructions to sustain motion for new trial and for further proceeding. A. C. Harris, of Indianapolis, Fraser & Isham, of Fowler, and Thompson & McAdams, of La Fayette, for appellant. John B. Cockrum, of Indianapolis, Stuart, Hammond & Simms, of La Fayette, and E. G. Hall, of Fowler, for appellee.

standing on the passing track 400 feet east of the Blasdell road. The train which struck appellant was going east on the main track. After appellant had disposed of his load of corn, he returned to Adams street, which he had crossed going to the elevator, for the purpose of crossing the railroad and going to the farm south of the town from which he was hauling corn. Finding the track obstructed, he turned north, entered North street, and drove east along that street until he came to the Blasdell road, where he turned south for the purpose of crossing the railroad on that street in order to reach his destination.

FELT, P. J. This is a suit by appellant against appellee for damages for personal injuries alleged to have been received on account of the negligence of appellee. The jury returned a general verdict against ap- The evidence tends to show that the railpellant and with it answers to interrogato- road was built through said town in 1871ries. The court overruled appellant's motion 1872; that a fill of about 31⁄2 feet was made for a new trial, and rendered judgment on across the Blasdell road upon which appelthe verdict. The error assigned is the over-lee's road was constructed; that the station ruling of said motion.

is 1,024 feet west of said road, and there is a downgrade of about 32 feet from the station to said road; that the approaches to the crossing on said road were made by cutting ditches on the side of the road and placing the dirt in the center of the highway; that the approaches were about 16 feet wide and in the center of the highway at the tracks appellee had placed boards 16 feet in length as a means of crossing the tracks.

The accident which is the basis of this suit, occurred in the daytime on November 23, 1905, at what is called the "Blasdell Crossing," within the corporate limits of the town of Boswell, Ind. Appellee's road consisted of three tracks, running east and west through the town, and intersecting the north and south streets thereof, which were five in number and each sixty feet in width. The town contained a population of about 1,000, and. the railroad divided it near the center. Appellee's depot is located on the south side of the tracks and in the fourth square west of the Blasdell road and west of Clinton street. The grain elevators mentioned in the evidence are located north of the tracks. The Blasdell road is the farthest street east in the town, and runs north and south across For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The evidence tends to show that there was no one at the Blasdell road to warn appellant; that his view was obstructed by the freight trains, the cars of which were 12 or 14 feet high; that the engine of the eastbound passenger train was not laboring and the train approached with but little noise, downgrade at a speed of about 15 miles per hour; that no warning was sounded of its

Ind.)

503

St. L. Ry. Co. v. Federle, 98 N. E. 123; Cleveland, etc., Ry. Co. v. Houghland, 44 Ind. App. 73, 83, 85 N. E. 369, 88 N. E. 623.

approach to the crossing; that there was a bump board on the west side of appellant's wagon, as he drove south, which extended above his head; that as he approached the tracks he took his position in front of the wagon, brought his team to a slow walk, stilled his wagon to aid him in hearing any sound that might indicate danger, looked to the west and listened, but heard no signal or noise to indicate the approach of a train or any danger, kept his team under careful control, did not stop, but drove around the end of the caboose onto the track, and was struck and injured as alleged in his complaint. The issues before the jury involved the question of appellee's negligence, appellant's contributory negligence, and the prox-structions or other negligent acts or omisimate cause of the alleged injury.

[1] In determining the correctness of instructions, we are to keep in mind the issues and the facts of the case as disclosed by the pleadings and evidence.

The instructions given should correctly inform the jury as to the law applicable to the case, and leave them free to determine the facts from the evidence on all questions where there is a conflict in the evidence, or where the facts, though undisputed, are of such a character that reasonable minds might draw different

conclusions therefrom.

[2] It is a general rule of law that the rights of a railroad company whose tracks are lawfully on or across a public highway, and a person lawfully using such highway, are equal except in the priority of right of the company in the use thereof when both desire to use the highway at the same time and place. Lake Shore & M. S. Ry. Co. v. Myers, 100 N. E. 313.

[5] If, under all the circumstances existing at the time and place of the accident, appellant used ordinary care in approaching and attempting to cross appellee's tracks, he cannot be charged with any higher or different degree of care on account of any obstructions, wrongful conduct or failure of appellee to discharge any duty incumbent upon it under the circumstances. In other words, any fault or negligence of appellee cannot enlarge or change the rule of care as to appellant from that of ordinary care.

[6] On the other hand, if appellee by ob

sions made the crossing more hazardous to persons desiring to use the highway, it became and was its duty to use such care and to give such warnings of the approach of its trains to the crossing as were commensurate with the increased hazard occasioned by such conditions or conduct. P., C., C. & St. L. Ry. Co. v. Lynch, 43 Ind. App. 177, 181, 87 N. E. 40; C., C., C. & St. L. Ry. Co. v. Federle, supra; C., C., C. & I. Co. v. Harrington, 131 Ind. 426-433, 30 N. E. 37; Chicago & Erie R. R. Co. v. Fretz, 173 Ind. 519-526, 90 N. E. 76; Cherry v. Louisiana, etc., R. R. Co., 121 La. 471, 46 South. 596, 17 L. R. A. (N. S.) 505, 126 Am. St. Rep. 323. In Cleveland, etc., R. Co. v. Miles, 162 Ind. 646, at page 651, 70 N. E. 985, at page 986, it is said: "The running of locomotives and trains at a high rate of speed over street crossings in a city, even where the ordinary signals or the statutory warnings are given, may constitute negligence, and render the company liable for inThe foregoing statement of the law pre-juries occasioned thereby. supposes that neither party is at fault. The right of precedence on the part of the company has been held to be dependent upon its giving due notice of the approach of its trains to the crossing. In Evansville, etc., R. Co. v. Berndt, 172 Ind. 697, at page 701, 88 N. E. 612, at page 614, it is said: "The rights of the railroad company and the public to the use of highway crossings are equal, except that the company is entitled to precedence in passing upon giving due notice of its desire and purpose so to do."

[3] A railroad crossing at grade is a known place of danger. The appellant in approaching and attempting to cross appellee's tracks was required to use ordinary care and prudence to avoid any accident or injury. The law presumes that he did see and hear that which he could so observe in the exercise of ordinary care for his own safety.

[4] Ordinary care is that care which an ordinarily prudent and cautious person would use under like circumstances and conditions to avoid injury, and such care is always proportionate to the known danger. C., C., C. &

* *

If the

dangers of the situation require it, extraordi-
nary precautions must be taken by the com-
pany to protect the public from injuries like-
ly to occur at such crossing." On page 650
of 162 Ind., on page 986 of 70 N. E., it is
said: "The degree of care to be exercised
by the company must be commensurate with
the dangers of the particular situation cre-
See, also,
ated by its use of the street."
Lake Shore & M. S. Ry. Co. v. Myers, 98 N.
E. 654-656, and cases cited.

[7] The law does not undertake to arbitrarily determine the place or distance from the track where one approaching a crossing must look and listen, but the test is, did he under the particular circumstances exercise ordinary care in selecting the place and in looking and listening for approaching trains? [8] Obstructions placed by a railway company on its tracks, its failure to give signals of the approach of a train to a crossing, or to perform any other duty it owes to the person lawfully on the highway may be, and frequently are, important elements to be considered in determining the question of con

tributory negligence. C., C., C. & I. Ry. Co. v. Harrington, supra; Malott v. Hawkins, 159 Ind. 127-135, 63 N. E. 308; Pittsburgh, etc., R. Co. v. McNeil, 34 Ind. App. 310, 318, 69 N. E. 471; Evansville, etc., R. Co. v. Berndt, supra.

[9] While the failure to give warning of the approach of a train to a highway crossing does not relieve the traveler from the duty of exercising ordinary care, he may, nevertheless, while in the exercise of such care, rely upon the giving of the warnings required by the law when a train is approaching a crossing. Chicago & Erie R. R. Co. v. Ginther, 48 Ind. App. 12, 90 N. E. 911, and cases cited.

[10] Contributory negligence, or the want of ordinary care, is usually a mixed question of law and fact. It is a question of law when the facts are undisputed and the inferences to be drawn from them lead to but one conclusion. Where the facts are controverted or of such a character that reasonable minds may draw different and contradictory inferences from them, the question is one of fact, to be determined by the jury. Diamond Block Coal Co. v. Cuthbertson, 166 Ind. 290, 306, 76 N. E. 1060.

or contributory negligence is one of fact or mixed law and fact, it is to be determined by the jury from evidence under proper instructions as to law. Chicago, etc., Co. v. Fretz, supra, 173 Ind. 526, 90 N. E. 76; Evansville, etc., Co. v. Berndt, supra. In the recent case of Indiana Union Traction Co. v. Sullivan, 101 N. E. 401, decided by this court, Hottel, J., in discussing the question of the court's invasion of the province of the jury, said: "The court may, however, assume certain facts within the issues and in support of which there was some evidence, and where the facts so assumed to exist admit of but one inference, and that inference is one of negligence, the court may tell the jury that, if they find such facts to be proven by the evidence, they may infer negligence."

The particular questions presented by the briefs all relate to the instructions given by the court at appellee's request. Among the instructions given are the following:

"(22) If the jury find from the evidence in this case that on approaching the crossing in question said plaintiff could not on account of obstructions whatever they might have been see or hear the train, or any portion of it, without stopping, looking, and listening:

the track, and in time to avoid injury, the plaintiff might have avoided the injury complained of, but that he did not so stop, look, and listen, then the jury are instructed that he was guilty of contributory negligence; and, if the jury so find, their verdict should be for the defendants."

[11, 12] Whether a traveler must stop be- and if the jury also find that if by stopping, fore attempting to pass over a railroad cross-looking, and listening before entering upon ing depends upon the facts of each particular case. He must always use ordinary care, but it cannot be said that such care requires him in every instance to stop before he attempts to cross. A railroad company has the right to operate its trains, but that right is subject to the restrictions that it will use the care and prudence required by the law to avoid injuring persons who have the right to go upon the public highways crossed by the tracks of such company. Nichols v. B. & O. S. W. Ry. Co., 33 Ind. App. 229, 233, 70 N. E. 183, 71 N. E. 170; Malott v. Hawkins, supra; Hoggatt v. Evansville, etc., R. Co., 3 Ind. App. 437, 443, 29 N. E. 941; Chicago, etc., Co. v. Fretz, supra.

[13] If the conditions from any cause are of a character to indicate unusual danger in attempting to cross, the traveler must use care proportionate to such danger. If the facts and conditions are of a character to mislead one about to pass such crossing and to give him a sense of security when he is in fact in danger, the law does not hold him to that strict accountability that it would under ordinary conditions, in the absence of such misleading facts, omissions, or circumstances. Ind. Union Ry. Co. v. Neubaucher, 16 Ind. App. 21, 38, 43 N. E. 576, 44 N. E. 669: Wabash R. Co. v. Biddle, 27 Ind. App. 161, 164, 59 N. E. 284, 60 N. E. 12; Chicago, etc., R. Co. v. Fretz, supra, 173 Ind. 525, 532, 90 N. E. 76; Chicago, etc., R. R. Co. v. Ginther, supra, 48 Ind. App. 19, 90 N. E. 911.

[14] Whenever the question of negligence

"(26) That fact, if it is a fact shown in evidence, that the plaintiff did not, or could not, while his team and wagon were in motion, by the vigilant use of his eyes and ears, learn of the approach of said train, and if the jury also find from the evidence that before driving on the main track in front of the approaching train he did not stop, look, and listen for such train, this raises a presumption of negligence against the plaintiff; and, if the jury so find, their verdict should be for the defendants."

Applying these rules of law to the foregoing instructions, we are to determine whether the court invaded the province of the jury on the question of contributory negligence.

[15] Instruction 22 told the jury, in substance, that if appellant could not see or hear the train without stopping, and he did not stop, look, and listen, he was guilty of contributory negligence regardless of any obstructions, or negligent omissions or conduct on the part of appellee.

The same error is found in the twentysixth instruction. It in effect tells the jury that, if appellant could not while his wagon was in motion learn of the approach of the train, his failure to stop raises a presump.