of general denial. There was a trial by Jury, and a general verdict for appellee, assessing his damages in the sum of $1,500. The jury also, at the request of both ap. pellant and appellee, returned with their general verdict answers to various interrogatories. The appellant moved for a judgment in its favor upon the special findings of the jury, notwithstanding the general verdict. This motion was overruled. There are several assignments of error, but the only one discussed by counsel for appellant is the overruling of the motion for a judgment notwithstanding the general verdict. There is no bill of exceptions presenting the ruling of the court on this motion, but no bill is necessary for that purpose. Railroad Co. v. Clark, 73 Ind. 168. Neither is the evidence in the record, but in reviewing the ruling of the lower court for a judgment non obstaute this court cannot look to the evidence; hence it is unnecessary that the evidence be in the record. Pennsylvania Co. v. Smith, 98 Ind. 42; Cox v. Ratcliffe, 105 Ind. 374, 5 N. E. Rep. 5. The question here presented must be determined upon the complaint, the interrogatories, and the auswers thereto. The general verdict covers all the issues in the case. (Hereth v. Hereth, 100 Ind. 35,) and the main purpose that the interrogatories and answers serve is to test the correctness of the general verdict. It is well settled that when the special findings are inconsistent with the general verdict, so that both cannot stand, the former controls the latter, and it is the duty of the court to give judgment accordingly. City of Indianapolis v. Cook, 99 Ind. 10; Fleetwood v. Machine Co., 95 Ind. 491; Hartman v. Flaherty, 80 Ind. 472; Railway Co. v. McCormick, 74 Ind. 440; Railroad Co. v. Boyd, 65 Ind. 526. But in attempting to overthrow the general verdict by the special findings there are certain well-settled rules that must be borne in mind. Be. fore the general verdict will yield to the special findings they must so antagonize each other that by no reasonable bypothesis can they be reconciled. It is then, and then only, that the findings control. Rev. St. 1881, § 547; Railroad Co. v. Stout, 53 Ind. 143; Alexander v. University, 57 Ind. 466. If, however, there be any reasonable hypothesis by which they can be reconciled, the judgment must follow the general verdict. Railroad Co. v. Clifford, 113 Ind. 460, 15 N. E. Rep. 524; Rail. road Co. v. Ellison, 117 Ind. 234, 20 N. E. Rep. 135; Redelsheimer v. Miller, 107 Ind. 485, 8 N. E. Rep. 447. And every reason. able presumption will be indulged in favor of the general verdict, and nothing will be presumed in support of the special findings. Rice v. Manford, 110 Ind. 596. 11 N. E. Rep. 283; McComas v. Haas, 107 Ind. 512, 8 N. E. Rep. 579; Sanders v. Weelburg, 107 Ind. 266, 7 N. E. Rep. 573; Redelshelmer v. Mil. ler, supra; Railroad Co. v. Rowan, 104 Ind. 88, 3 N. E. Rep. 627. So, also, where the answers to interrogatories contradict each other, the general verdict must prevail. Hereth v. Hereth, 100 Ind. 35. The right to a recovery in this case, if any there be, is based upon two facts, which must exist: (1) That the appellant was negligent; and (2) that appellee was free from any negligence contributing to the injury. Appellant contends that all the facts stated in the special findings, when construed together, show that the appellee was not free from contributory negligence. The special findings seem to cover the material facts in the case, and from them it appears that Purcell's station is about six miles south of the city of Vincennes; that the main track of appellant's railroad at that place ran in a north and south direction; that there was a side track on the east side and parallel with the main track, which was used for switching purposes, and for trains to pass each other. East of said station was a highway, the line of which extended from the east towards the west until it came to within 60 feet of the railroad track, and then turned south, and continued parallel with said track for the distanco of 300 feet. It then turned to the west, and crossed the main track of the railroad at the point where the plaintiff was injured. It was about the hour when the southbound passenger train was due at said station. A south-bound freight train had been side-tracked to allow the passenger train to pass, and was standing upon the side track, with the locomotive engine headed to the south. It was 215 feet from the highway crossing to the locomotive attached to the freight train. The passenger train approached said crossing at the rate of 30 miles per hour. The signal whistle for the approach to the station was given, but no whistle was given, and no bell rung, or any signal of any kind giveu, for the crossing. The appellee was a teamster, and lived in Vincennes, and was familiar with this crossing. On the day of the accident he was traveling upon the highway in a wagon to which were attached two gentle horses. He was traveling at the rate of two miles per hour. As he approached from the east, and turned southward, he saw the freight traiu standing on the side track. freight train obstructed the view in the direction of the station and of the main track. Appellee continued southward with said highway, and turned to the west. When from 40 to 75 feet east of the crossing he brought his team to a stop, and looked and listened for an approaching train, and continued to look and listen in each direction, until it was too late to avoid a collision. Appellee was in the possession of all his faculties. His eyesight and hearing were good, and he was agile and active. The engine standing on the side track was making a loud noise from escaping steam, and a large volume of steam and smoke was escaping, which prevented appellee from seeing or hearing the approaching train until it got within 215 feet of the crossing. There was no ob. struction on the main or side track between the crossing and the engine at. tached to the freight train. The railroad was straight for about a mile north of the crossing. A person on the highway 40 feet east of the crossing could see only 33 feet beyond the engine on the side track. When the appellee saw the approaching train he did all he could to prevent a collision, The " smoke and steam prevented seeing, the train until it was within 215 feet of the crossing. At what point the appellee was upon the highway when the train came in view is not found. At the rate in which the train was going it would reach the crossing within four or five seconds. The ap pellee must have been near to or upon the crossing at the moment the train came in sight, for it is implied from the general verdict that he did all he could to prevent a collision. There are cases which hold that there may be a recovery although the plaintiff may have gone upon the track without looking and listening for approaching trains,-as where, by the negli. gence or misconduct or wrongful acts of omission, the plaintiff is thrown off his guard, or when defendant acts as to invite him to go upon the track, or creates the impression that there is a less degree of danger than actually exists. Beach, Contrib. Neg. § 23: Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. Rep. 874; Railway Co. v. Hill, 117 Ind. 62, 18 N. E. Rep. 461. As before said, the appellee was not required to forego his privilege of traveling upon the highway; and, as everything must be presumed in support of the general verdict, it will be presumed that the appellee, while in the lawful exercise of his right, was lured within the danger line and to the fatal spot by the appellant's omission to give the statutory signals. We do not think the court erred in overruling the motion. Judgment affirmed. and when the engineer of the passenger | escaping steam prevented hearing, and the train saw appellee driving on the crossing he applied the air brakes, and reversed the engine, and did all he could to stop the train and prevent a collision. By the decisions of the supreme court of this state it is settled that one about to cross a railroad track must approach the crossing under the apprehension that a train of cars is liable to pass at any moment, and that, the greater the probable danger, the greater the degree of care to be observed. Railroad Co. v. Butler, 103 Ind. 35, 2 N. E. Rep. 138. Whether wisely or unwisely decided, it is not for us to say, but it is equally well settled that "the fact that a person traveling on a highway comes in collision with a train on a railroad crossing is of itself sufficient to suggest a presumption of contributory negligence against him in a suit for compensation. Railway Co. v. Greene, 106 Ind. 279, (285,) 6 N. E. Rep. 603; Railway Co. v. Hammock, 113 Ind. 1, 14 N. E. Rep. 737; Railway Co. v. Stommel, 126 Ind. 35, 25 N. E. Rep. 863; Railway Co. v. Howard, 124 Ind. 280, 24 N. E. Rep. $92, and cases cited. Under these decisions the appellee starts into this case not only charged with the burden of showing that he was free from contributory negligence, but with the presumption against him that he was negligent. The law accounts it negligence for any one to drive heedlessly or recklessly upon a railroad at a crossing, or to cast himself upon a known peril, unless under compulsion. Railway Co. v. Hill, 117 Ind. 56, 18 N. E. Rep. 461; Morrison v. Board, 116 Ind. 431, 19 N. E. Rep. 316; Railway Co. v. Pinchin, 112 Ind. 592, 13 N. E. Rep. 677. The failure to sound the whistle and to ring the bell or to observe the statutory signals will not avail one who by his own acts contributed to the injuries. Because one party to an action is negligent is no excuse for negligence in the other party. Railway Co. v. Hammock, supra: Railway Co. v. Brannagan, 75 Ind. 490; Railway Co. v. Hedges, 118 Ind. 5, 20 N. E. Rep. 530. Appellant asserts that the facts found show that the appellee attempted to make the crossing when he knew it was perilous; that he failed to exercise that degree of care which the dangerous surround. ings required of him; and that, applying the rules of law as above stated, it was the duty of the trial court to have sustained its motion for a judgment non obstante. We agree with appellant that the conditions at the crossing were such as to make it highly dangerous, and that such conditions were known, or could have been known, by appellee by the exercise of his organs of vision; but we do not think that the facts show that he rushed heedlessly and recklessly upon a known peril. He was not required to forego travel upon the crossing because appellant had ren. dered it highly dangerous. He had the right to presume that the appellant's servants would apprise him of an approaching train by giving the statutory signals, and, if he used that degree of care comImensurate with the perilous surroundings, he is exonerated from the charge of contributory negligence. The noise of the (6 Ind. App. 655) JORDON v. MUTH et al. Where the bill of exceptions does not contain all the evidence, but refers to another part of the record for the omitted evidence, no question as to the sufficiency of the evidence will be considered by the appellate court. Appeal from circuit court, Marion county; E. A. Brown, Judge. Action by August Muth and another against Arthur Jordon. From a judgment for plaintiffs, defendant appeals. Affirmed. Griffith & Potts, for appellant. Josh E. Florea, for appellees. ROSS, J. The only questions presented by this appeal arise on the ruling of the court on appellant's motion for a new trial; and the only questions argued by counsel for appellant, arising upon this motion and ruling, relate to the sufficiency of the evidence to sustain the finding of the court. It is contended by counsel for appellant that "the evidence in the case consists solely of the agreed statement of facts, together with the correspondence between the appellant, doing business in Indianapolis, and the appellees, doing business in Pittsburgh," while counsel for the appellees contend that the facts were not agreed upon, and that there is no bill of exceptions in the record, containing either an agreed statement of the facts, or the evidence. The clerk of the Marion circuit court certifies to the filing of a bill of exceptions by the appellant, and sets out in the record such bill, which, after giving the title of the cause, reads as follows: "Bill of Exceptions. Agreement as to Evidence. The evidence in this cause consists of letters and telegrams, drafts, and check between the plaintiffs and defendant, and the Indorsement of the payment of the check thereon; receipt from the railroad for the goods; and the sworn, itemized statement of the plaintiffs and their candler, showing the loss to the plaintiffs, for which this action is brought. It is therefore agreed by and between the plaintiffs and defendant herein that said letters, telegrams, drafts, bank check, receipt, and indorsement of the payment of the check thereon, and the sworn, itemized statements showing lost and rotten eggs, shall be treated and considered as the evidence herein, and that the plaintiffs' witnesses would testify to the several matters and claims as set forth in the said letters and telegrams written by the plaintiffs to the defendant; the sworn, itemized statement of spoiled eggs; the issuance of the bank check for $413.40 in payment of the defendant, drawn in favor of Schnull & Co.; that its payment was stopped on account of the eggs losing so in candling, and that the defendant's witnesses would testify to the several matters and claims as set forth in said letters and telegrams written by the defendant to the plaintiffs; and that he, the defendant, filled the plaintiffs' order, in every particular, and delivered the eggs to the railroad company in good condition, and promptly, in exact accordance with the contract. Josh E. Florea, Atty. for Plffs. Griffith & Potts, Attys. for Deft." And following this agreement are copies of numerous letters and telegrams, a draft, bank check, and a receipt from the railroad company. Then follows this statement: "For itemized 'bill of particulars' herein, see complaint. Then follow copies of more letters, following which is the statement, "And this was all the evidence given in the case. Then follows the concluding part of the bill, in these words: "And thereupon the court, having heard the evidence, and being duly advised in the premises, found for the plaintiffs for the sum of $163.60, as heretofore set out in the record. Whereupon the defendant moves the court for a new trial, as heretofore set out in the record, and the same was overruled. The judgment heretofore set out in the record was rendered, and the defendant excepted, and prayed an appeal to the appellate court, which was granted on the terms set out in the record, and 50 days' time was given to prepare and file a bill of excep. tions. And said defendant now here, within the time, tenders this bill of exceptions, and prays that the same may be signed and sealed, and made a part of the record, which is done this 8th day of January, 1892." To this is appended the signature of the judge of the Marion circuit court. So far as the bill of exceptions itself is concerned, there is nothing in it indicating that the letters, telegrams, etc., copied into the bill were ever introduced in evidence, unless the agreement above set out, and which precedes such letters and telegrams, is to be considered as sufficient for that purpose. There is no recital of any kind in the bill that they were either offered or introduced in evidence. It is settled that a bill of exceptions purporting to contain the evidence introduced on the trial of the cause must contain the certification of the judge that it coutains all the evidence given on the trial, and, even where the judge has so certified, yet, if it appears from the bill itself that it does not in fact contain all the evidence, this court will not reverse the judgment on any question arising on the evidence. Eichel v. Bower, 2 Ind. App. 84, 28 N. E. Rep. 192; Collins v. Collins, 100 Ind. 266; Lyoŭ v. Davis, 111 Ind. 384, 12 N. E. Rep. 714; Manufacturing Co. v. Hinke, 119 Ind. 47, 21 N. E. Rep. 542, and cases cited. In this case the bill of exceptions shows on its face that it does not contain all the evidence, and refers to another part of the record for the omitted evidence. All the evidence not being in the record, there is no question presented, for which the judgment can be reversed. Judgment affirmed (7 Ind. App. 475) KOEHRING et al. v. AULTMAN, MILLER & CO.1 (Appellate Court of Indiana. May 12, 1893.) CHATTEL MORTGAGES-DESCRIPTION OF PROPERTY -CONVERSION-PLEADING-ESTOPPEL. 1. A refusal to strike out portions of a complaint is not reversible error. 2. The following description of the chattels in a chattel mortgage: "One sorrel horse, twelve years old, called "Tom,' and one iron gray horse, four years old, called 'Hurk,'". though the situation thereof is not named, is sufficient, and, when recorded, the mortgage is notice to all purchasers, whether they have actual notice or not. 3. Where in a suit for conversion actual conversion is alleged, a demand before suit need not be alleged. 4. A junior mortgagee recovered possession of the mortgaged chattels in replevin against the mortgagor. In a subsequent action by the senior mortgagee against the junior mortgagee for conversion of the property, the complaint stated that in the replevin suit the senior mortgagee was "present in court." Held, that the senior mortgagee not being a party in the replevin suit, nor in privity with the mortgagor, the above allegation did not cause him to be concluded, as to the title to the property, by the judgment in replevin. Appeal from superior court, Marion county; J. W. Harper, Judge. Action by Aultman, Miller & Co. against Bernard Koehring and others. From a judgment for plaintiff, defendants appeals. Affirmed. Wm. V. Rocker, for appellants. Hammond & Rogers, for appellee. REINHARD, C. J. The appellee, a foreign corporation, instituted this action for the recovery of the value of certain personal property upon which it was alleged in the complaint the appellee held a chattel mortgage, but which was converted by the appellants to their own use, and placed beyond the appellee's reach. In the trial court the appellee recovered 1 Rehearing denied, 35 N. E. 30 judgment for $70, the appellants having previously offered to allow judgment for $50. The first ruling complained of is the refusal of the trial court to strike out certain portions of the complaint. Such a ruling does not constitute reversible error. Lewis v. . Godman, 129 Iud. 359, 27 N. E. Rep. 563: Sprague v. Pritchard, 108 Ind. 491, 9 N. E. Rep. 416; Walker v. Larkin, 127 | Ind. 100, 26 N. E. Rep. 684; Jussen v. Board, 95 Ind. 567; Gwynee v. Ramsey, 92 Ind. 414; Rowe v. Major, Id. 206; Railway Co. v. Kinsey, 87 Ind. 514; Morris v. Stern, 80 Ind. 227. The overruling of the demurrer to the complaint is another alleged error. It is Insisted that the complaint is defective for two reasons: (1) Because of the insufficiency of the description of the property in the chattel mortgage; (2) because no demand for the property before the commencement of the action is alleged. The complaint undertakes to state the facts at length upon which a recovery is sought, and in doing so sets out the substance of the mortgage which forms the basis of the claim, and also a verbatim copy of the description of the property contained in the mortgage. The description is as follows: "One sorrel horse, twelve years old, called "Tom,' and one iron gray horse, four years old, called 'Hurk.'" There was no statement as to where the property was situated when the mortgage was executed. It is contended that the description is insufficient as far as it affects an innocent purchaser of the property, such as the appellants are claimed to be. We do not think this position can be maintained. Reasonable certainty in the description of mortgaged chattels is required, but under the rulings of our supreme court parol evidence is admissible for the purpose of identification; and where, by the aid of such parol evidence, the property is reasonably susceptible of identification, the description will be held sufficient. The case of Tindall v. Wasson, 74 Ind. 495, upon which the appellants largely rely, does not sustain them. That was an action in replevin much like the present case, to recover possession of the mortgaged property. The vendee of the mortgagor, who was the defendant in the action, answered that the only description of the property contained in the mortgage was "two mule colts, one year old next spring.' There was a demurrer to this answer, and it was overruled, which ruling was affirmed on appea', the court holding that, in the absence of any showing which would make the description_more certain, the answer was sufficient. The question was one purely as to the sufficiency of the answer, and it was expressly declared in the opinion that the court confined itself to the precise question presented by the answer, without attempting to lay down any general rule. In the course of the opinion the court say: "There are no circumstances of identity stated; neither locality, ownership, nor anything else affording means of identification. The description we have given stands alone and unaided. * If it were aided by any circumstance or matter of identification which would enable the description * to be made certain by parol evidence, it would be otherwise. In the case at bar the description is contained in the complaint, and it is aided by circumstances of identification. True, it is not stated where the property was when the mortgage was executed, but it is described as "one sorrel horse, twelve years old, called 'Tom,' and one iron gray horse four years old, called Hurk.'" Here we have the color, the age, and the names of the horses,-all marks of identity. Nor will the fact that there may be other horses of the same age or color or names add strength to the appellants' position. The marks stated are sufficient, by the aid of parol evidence, to identify the property, and the description is such as to put a third person upon his inquiry. In Burns v. Harris, 66 Ind. 536, the description "a dark bay mare" was held not a void description, and such a one as might be rendered sufficiently certain by the aid of parol testimony. It was there held that the description given in the mortgage is not the only means of identifying the property, but that parol evidence may be employed to make it certain of identity, if it can be done. As in the case cited, so in the case at bar, there can be no room for doubt as to the identity, as it might very properly be rendered certain by parol testimony. This being so, the description must be held sufficient, and the case of Tindall v. Wasson, supra, does not stand in the way. In further support of the sufficiency of the description, see Buck v. Young, 1 Ind. App. 558, 27 N. E. Rep. 1106; Duke v. Strickland, 43 Ind. 494; Ebberle v. Mayer, 51 Ind. 235; Bank v. Brown, 112 Ind. 474, 14 N. E. Rep. 358. We are of the opinion that the description was sufficient, and the fact that the appellants stand in the position of vendees to the mortgagor adds no force to their contention that they are not bound by it. The mortgage was duly recorded, and was notice to the world. It contained enough of description of the property to put them upon their inquiry, and they are bound by it, whether they had actual notice of the mortgage or not. Ross v. Menefee, 125 Ind. 432, 25 N. E. Rep. 545. This brings us to the consideration of the other objection urged against the sufficiency of the complaint, that a demand for the property is not averred as having been made before the bringing of this action. It is shown by the averments of the complaint that both the appellants and appellee held mortgages on the property in controversy, the appellee as senior and the appellants as junior mortgagees. It is further averred that the appellants obtained possession of the property by vir tue of a replevin suit against the owner thereof before a justice of the peace, based upon their said junior mortgage, and that while said suit was pending before said justice, and during the trial thereof, appellee notified appellants of its senior mortgage, and exhibited it to them and their attorneys, as also the note it was made to secure, thereby giving the appellants actu. al notice of the appellee's mortgage, and that after the appellants had been awarded judgment for the possession of the said property they took the same, converted it to their own use and sold it, and have put said property beyond the reach of the appellee, and that said appellee has been and still is unable to secure possession of the same. All this is alleged to have occurred before the beginning of this action, and the appellee asks judgment for damages on account of such conversion. These allegations, we are convinced, are sufficient to excuse a demand, if one was necessary. It is well settled by the decided cases that when an actual conversion is alleged, a demand before suit need not be averred. Proctor v. Cole, 66 Ind. 576; Bunger v. Roddy, 70 Ind. 26; Snyder v. Baber, 74 Ind. 47; Terrell v. Butterfield, 92 Ind. 1. It is that suit and the present appellee, in pursuance of which the appellee conducted the defense. The record shows that the judgment in question was rendered by default, and no appeal could have been taken from it by the appellee in the present case, and it is not conclusively shown that appellee did anything there by virtue of which the judgment is binding upon it. There was no available error. Judgment affirmed. (6 Ind. App. 658) PEIGH v. HUFFMAN. maintained, however, that other allega- (Appellate Court of Indiana. May 12, 1893.) tions in the complaint, in effect, destroy the averment of a conversion. It is stated in the complaint that in the replevin suit before the justice the appellee was "present in court," and the appellants' learned counsel insists that, as the title to the property was there involved, the appellee is concluded by the judgment. In that action the present appellee was not a party; the suit was between the present appel. lants and the owner and mortgagor. The mere expression "present in court" cannot be construed so as to bind the appellee by the judgment there rendered. It does not appear from the complaint that any issue was there made between the present parties as to their respective rights; and as between the defendants in that action and the appellee here there was no privity. The complaint was sufficient, and the court committed no error by overruling the demurrer. The last error assigned in the superior court was the overruling of the motion for a new trial. Twenty-five reasons are assigned in the written motion for a new trial, and each of these is argued at length and with much apparent force and plausibility by the learned counsel for appellants. Some of these relate to the alleged misconduct of the presiding judge in the interrogation of witnesses and interruptions of counsel while conducting the examination. Others have reference to the introduction and rejection of testimony, etc. We have examined all these alleged reasons, and have given the matters involved in this appeal a careful examination. The result reached by the judgment impresses us as a just and proper one, and, if any errors were committed, they were of a technical nature, and have not harmed the appellants, inasmuch as the judgment is quite as favorable to them as they had a right to ask, and, we will be pardoned for suggesting, only $20 more than the amount the appellants offered to confess judgment for. The point most confidently relied upon by the appellants seems to be that the appellee had defended the replevin suit before the justice of the peace, to which said appellee was confessedly not a party, but in which it is urged it acted for the mortgagor and owner of the property. The facts are far from showing that appellee is concluded by that judgment. There was no issue in that case as to any claim on account of appellee's mortgage, and the appellants did not even offer to show any arrangement between the defendants in - NEGOTIABLE INSTRUMENTS HOLDERS FOR VALUE -VENIRE DE Novo APPEAL DISCRETION OF TRIAL COURT. 1. One to whom a note is indorsed as collateral security for a pre-existing debt is not a holder thereof for value, and takes subject to the equities between the original parties. 2. A motion for a venire de novo will not be sustained unless the verdict is so defective or uncertain that a judgment cannot be rendered thereon. 3. The refusal of the trial court to allow amendments to a pleading on the trial is such an exercise of discretion as will not be reversed on appeal unless an abuse of discretion is shown. Appeal from circuit court, Huntington county; E. C. Vaugh, Judge pro tem. Action by Henry Peigh, executor, against Jacob Huffman on three promissory notes. Judgment was rendered for defendant, and plaintiff appeals. Affirmed. Jas. C. Branyan, Spencer & Branyan, and George A. Yopst, for appellant. C. W. Watkins, for appellee. DAVIS, J. This was an action instituted by appellant against Jacob Huffman and William Frances on three notes of $200 each, signed by them on the 20th day of January, 1880, payable to Samuel Stump, and by him indorsed to said Catherine Peigh, then in life. The record recites that the defendants appeared by attorneys, but we find no answer in be. half of Frances. Huffman filed cross com. plaint, and also answers. The substance of his special pleas is that the notes were never executed, but that, when signed, they were placed in the hands of an escrow on certain conditions, which are specifically stated, but which, on the questions sought to be presented, we do not deem it necessary to set out at length. The issues were submitted to a jury for trial, and a special verdict was returned, on which judgment was rendered against appellant. The errors assigned are: (1) That the court erred in overruling appellant's motion for judgment in his favor upon the special verdict of the jury; (2) that the court erred in overruling appellant's motion for a venire de novo; (3) that the court erred in overruling appellant's motion for judgment in his favor on the pleadings; (4) that the court erred in overruling appellant's motion for leave to file additional paragraph of reply; (5) that the court erred in overruling the motion for a new trial. The substance of the special verdict |