of avoiding the accident, notwithstanding the | Indianapolis & St. L. R. Co. v. Herndon, 81 negligence of his opponent, is considered solely Ill. 143. responsible for it.

Pollock, Torts, 374 et seq.; Evansville & C. R. Co. v. Hiatt, 17 Ind. 102; Indianapolis & C. R. Co. v. Wright, 22 Ind. 376; Dowell v. General Steam Nav. Co. 5 El. & Bl. 195; Birge v. Gardiner, 19 Conn. 507; St. Louis & S. E. R. Co. v. Mathias, 50 Ind. 65.

There must be a want of ordinary care contributing to the injury as a proximate cause before contributory negligence can exist.

Footmen have an equal right to the lawful use of the street, and they are not bound to keep in motion all the time, but may stop for business or pleasure without being precluded from their right to recover damages inflicted by the negligence of another.

2 Thomp. Neg. 1200; Britton v. Cummington, 107 Mass. 347; Hunt v. Salem, 121 Mass. 294.

A footman's stopping on the crossing in the street, as plaintiff was, was at most only passive negligence. It could have nothing of contri

condition and not a cause. He must have done more,-committed some overt act, taken some delicate chance or risk.

Am. & Eng. Encyclop. Law, 24, and authorities cited; Houston & T. C. R. Co. v. Carson, 66 Tex. 345; Bergman v. St. Louis, I. M. & S.bution to the injury in it. It was simply a R. Co. 4 West. Rep. 594, 88 Mo. 678; Kelley v. Union R. Co. 18 Mo. App. 151; Baltimore &O. R. Co. v. Kean, 3 Cent. Rep. 716, 65 Md. 394; Tuff v. Warman, 5 C. B. N. S. 585; State v. Manchester & L. R. Co. 52 N. H. 528; Jucker v. Chicago & N. W. R. Co. 52 Wis. 151; Richmond & D. R. Co. v. Howard, 79 Ga. 44; Muehlhausen v. St. Louis R. Co. 6 West. Rep. 857, 91 Mo. 332; Baltimore & O. R. Co. v. State, 36 Md. 366; Kerwhacker v. Cleveland, C. & C. R. Co. 3 Ohio St. 172; Donohue v. St. Louis, 1. M. & S. R. Co. 6 West. Rep. 848, 91 Mo. 357.

2 Thomp. Neg. p. 1200, § 46; 2 Shearm. & Redf. Neg. 4th ed. § 654; Williams v. Crealy, 112 Mass. 79; Bigelow v. Reed, 51 Me. 325.

Messrs. A. P. Twineham and W. D. Robinson, also for appellant:

Bishop, Non-Contract Law, § 453; O'Brien v. McGlinchy, 68 Me. 552; Bigelow, Torts, 2d ed. 307; Davies v. Mann, 10 Mees. & W. 546; Wright v. Brown, 4 Ind. 98.

Messrs. Clarence A. Buskirk and John W. Brady for appellee.

Mitchell, Ch. J., delivered the opinion of the court:

Evans sued the Adams Express Company to Every person upon the driveway of a street recover damages for injuries alleged to have owes it as a duty to every other person law-resulted to him from being run over in a pubfully in the same situation to use such a de-lic street in the City of Princeton by a horse gree of care as an ordinary prudent man would and wagon alleged to have been negligently be supposed to exercise for the purpose of driven by the agent or employé of the Comavoiding injury to those around him. pany. There was a verdict and judgment for the defendant below. There is no controversy as to the facts. The evidence shows that about 7 o'clock on the evening of November 12, 1888, the appellant was standing on a crosswalk in a public street of the City of Princeton conversing with two acquaintances. After being thus engaged for a few moments, they stepped aside from the crosswalk, and continued in the street talking. The appellant stood in the street about eight feet from the curb, near the margin of the traveled track, over which horses and vehicles were accustomed to pass, there being, however, about thirty feet of space in the street, over which a horse and wagon might have been driven without coming in contact with the appellant. It was after nightfall, but it was not so dark but that persons standing or a horse and vehicle approaching on the street could be seen.

It is not negligence per se for a footman to stop upon the street of a city, even at a place other than on a crossing for footmen.

2 Thomp. Neg. 1200.

Negligence is the want of ordinary care. Ordinary care is that degree of care which a person of ordinary prudence is presumed to use, under the particular circumstances, to avoid injury. It must be in proportion to the danger to be avoided and the fatal consequences involved in its neglect.

Toledo & W. R. Co. v. Goddard, 25 Ind. 197. Instruction number 18 took the question of the appellant's negligence from the jury and

was erroneous.

Pennsylvania Co. v. Hensil, 70 Ind. 575; 2 Thomp. Neg. 1236; Shearm. & Redf. Neg. 4th ed. § 11; Albion v. Hetrick, 90 Ind. 547; Huntington v. Breen, 77 Ind. 29; Wilson v. Trafalgar & B. C. Gravel Road Co. 83 Ind. 326; Howland v. Union Street R. Co. 150 Mass. 86; Chicago & 1. R. Co. v. Lane (Ill.) 22 N. E. Rep. 513; Ohio & M. R. Co. v. Collarn, 73 Ind. 261; Chicago & E. 1. R. Co. v. O'Connor, 6 West. Rep. 773, 119 Ill. 586.

Slight negligence on the part of the plaintiff will not defeat his action for damages because that is the want of extraordinary care, and such care is not required of a person injured by the carelessness of another as a condition precedent to his right to recover damages for an injury sustained.

Griffin v. Willow, 43 Wis. 509; Cremer v. Portland, 36 Wis. 92; Wharton, Neg. § 324;

The Adams Express Company employed an agent at Princeton, who transacted its business for a stipulated price per month, and furnished his own horse and wagon, and employed a driver at his own expense, to carry express packages and matter to and from the trains. The United States mail was also carried to and from the trains in the same wagon, and when not occupied in carrying express or mail matter, the horse and wagon were employed by the owner, as opportunity offered for hire. On the evening in question the boy having the horse and wagon in charge received a sack of mail at the postoffice, and while on his way with it received at another place a parcel which was to go by express. With the mail-sack and express package in his wagon, the boy was pursuing his way to the depot, another boy occupying the driver's seat with him, the horse being permitted to walk at a moderate pace,

same may be said of the one which follows, in which the court told the jury that: (18) To stand in a public street, knowing that it is where wagons and horses are liable to pass, and especially to stand in such a place at night, and to pay no heed to the danger of so standsuch a place, is not exercising reasonable care to protect one's self from the danger of such a place."

without being guided. When within about twelve feet of the place where the appellant and his friends were standing, the boy observed them; and seeing two of them move out of the way, and being playfully engaged with the other boy, he did not afterwards see the apellant until the wagon wheel struck and threwing, and take no care to avoid the danger of him to the ground, inflicting painful injuries upon his person. The jury having found, in answer to a special interrogatory, that the appellant was not in the exercise of ordinary care at the time he was injured, it is proper to remark that no question is made on this appeal relating to the liability of the Express Company for the negligence of the driver employed by the owner of the horse and wagon. bash, St. L. & P. R. Co. v. Farver, 111 Ind. 195, 9 West. Rep. 621.

It is said that the instruction is erroneous, because it assumes that a public street, where horses and wagons are liable to pass, is a dangerous place. The assumption contained in the instruction is that it is dangerous to stand Waheedlessly in such a place, especially at night. This is so, according to the common observation and experience of mankind, and we are unable to see how the jury could have been misled by being so instructed.

At the proper time the plaintiff asked the court to give the jury the following, among other instructions: "(12) The fact that at the time of the alleged injury the plaintiff was in the street, and not on the sidewalk or regular crossing for footmen, will not of itself preclude him from recovering, if you find that he was injured, as alleged, by the negligence of the driver of the vehicle in running it against and over him. An individual on the street of a city, whether he be on a sidewalk, a foot-crossing or on a carriage-way of such street, is bound to use only ordinary care to avoid in jury, and whether such care has been used depends upon all the facts and circumstances surrounding the event."

When the facts assumed present a case in which the standard of duty is fixed and certain, or when the measure of duty as defined by law is the same under all circumstances, to omit the duty is negligence, and may be so declared by the court; or when, upon a given hypothesis, negligence is so clearly defined and palpable as to constitute negligence under all circumstances, it is the duty of the court to declare that, if the facts assumed are found from the evidence, the conclusion of negligence follows as a matter of law. It is for the court to say whether or not, upon a given state of facts, negligence may or can reasonably be inThis instruction relates to the subject of con- ferred. The jurors have to say whether or not tributory negligence, and, while we regard it the facts assumed have been proven, and as in some respects defective, we do not deem whether, when they are submitted to them by it necessary to point out wherein it is inaccu- the court, negligence ought to be inferred. ate; since, even if it had been entirely correct, Wabash, St. L. & P. R. Co. v. Locke, 112 Ind. it would not have been error to refuse it, be- 404-421, 11 West. Rep. 877, and cases cited; cause the court had sufficiently expounded the Carrer v. Carver, 97 Ind. 497; Woolery v. law to the jury covering the subject of contrib-Louisville, N. A. & C. R. Co. 107 Ind. 381, 5 utory negligence. We may remark, however, West. Rep. 667; 2 Thomp. Neg. 1236. that it cannot be said, as a matter of law, that For a footman to stand heedlessly at night standing in the carriage-way of a public street in a city, in the dark, and engaging in conversation, without using sufficient vigilance to discover a slowly approaching horse and vehicle, may not preclude the recovery of damages for injuries resulting from the inattention of the driver. The degree of vigilance must always be in proportion to the danger which is reasonably to be apprehended from the situation in which one voluntarily places himself, and if a footman selects the carriage-way of a public street as a place at which to hold converse with his friends after night-fall, he may know that the situation and occasion are such as to demand more than ordinary vigilance to avoid contact with vehicles in the charge of inattentive drivers, who are not looking out to avoid footmen standing in the way.

The following instruction given by the court is complained of: (15) Where one knows of danger which threatens injury to himself, or where one voluntarily places himself in a dan gerous place, as in a public street where horses and vehicles pass, and he can avoid such danger by reasonable exertion, his negligent failure to do so will prevent his recovery for an injury so incurred.

We are unable to discover any just ground of objection to the above instruction, and the

in the carriage-way, on a public street, where it is known that horses and vehicles are liable to pass momentarily, is so unusual that persons riding or driving along the street might well be thrown off their guard, and for one to do so without taking any precaution to avoid danger from persons riding or driving on the street is negligence. In effect, this is what the court told the jury. It is true that a footman about to cross a street is not held to the degree of diligence that is imposed upon a traveler at the crossing of a street by a railroad track. Stringer v. Frost, 116 Ind. 477, 2 L. R. A. 614.

It is, however, the duty of persons crossing or about to cross a public street on foot, to look and take proper precautions so as to avoid collision with approaching horsemen or vehicles. We quite agree that, if the driver of the express wagon saw the appellant standing in the street, it was his duty to turn out, and not drive his wagon upon him; and if the facts presented a case in which it appeared that the driver, after seeing the appellant, had any reasonable ground to apprehend that he was not aware of the approaching wagon, and was unconscious of the danger that was imminent, a recovery would have been justified, notwithstanding the antecedent negligence of the appellant. Cincinnati, 1. St. L. & C. R. Co. v.

Long, 112 Ind. 166, 11 West. Rep. 322; Indian- | apolis, P. & C. R. Co. v. Pitzer, 109 Ind. 179, 4 West. Rep. 250, and 7 West. Rep. 396; Shearm. & Redf. Neg. 4th ed. § 61.

One whose negligence has contributed to an accident from which he has sustained an injury will not be debarred the right to recover if the defendant, after having discovered his peril, having also reasonable ground to believe him unconscious of danger, or unable to avoid it, might himself, by the exercise of or

the general funds of the corporation no liability exists, is not affected by the constitutional provisions limiting the indebtedness of such corporations.

3. Where by the Act authorizing a municipal corporation to construct street improvements the portion of the expense thereof chargeable to it is to be paid in cash upon the completion of the work, no indebtedness can be said to be incurred therefor, even although during the pendency of the work bonds may be issued to raise funds to prosecute the same.

dinary diligence, have prevented the mischief 4. One who has signed an agreement which followed. The ground upon which a plaintiff may recover, notwithstanding his own negligence, is that the defendant, after becoming aware of the danger to which the plaintiff was exposed, failed to use a proper degree of care to avoid injuring him. Zimmerman v. Hannibal & St. J. R. Co. 71 Mo. 476.

Such a case is not, however, presented by anything contained either in the instructions or the facts which appear in the record.

Where the negligence of two persons is contemporaneous, and the fault of each operates directly to cause the injury, the rule deducible from the authorities is that the plaintiff cannot recover if, by the exercise of ordinary care on his part, he might have avoided the injurious results of the defendant's negligence. Bigelow, Torts, 311; Mayhew v. Burns, 103 Ind. 328, 1 West. Rep. 577; Murphy v. Deane, 101 Mass. 455.

When a collision occurs in a public street by the united and contemporaneous negligence of two persons, neither can recover from the other for a resulting injury.

The facts and instructions bring the case clearly within the rule last above stated. What has already been said disposes of all the questions made, and demonstrates that no error was committed by the court which would justify a reversal of the judgment. Judgment affirmed, with costs.

Thomas F. QUILL, Appt.,

v.

CITY OF INDIANAPOLIS et al.

provided for in an Act authorizing street improvements, that in consideration of the right to pay his assessment in installments, he will not question its validity, cannot attack the provision of the Act prohibiting the questioning of the assessment by one in such position.

(February 8, 1890.)

APPEAL by plaintiff from a judgment of the Circuit Court for Marion County in favor of defendants in an action to enjoin the issuance of certain bonds and the enforcement of a certain street assessment against plaintiff's property. Affirmed.

Messrs. Denny & Elliott for appellant. Mr. W. L. Taylor, City Atty., for appellees.

Mitchell, Ch. J., delivered the opinion of the court:

It is shown by the complaint, upon which all the questions in the present case arise, that the plaintiff, Thomas F. Quill, is a resident taxpayer of the City of Indianapolis, and the owner of a certain described lot in one of the additions to the City. It appears that the common council and board of aldermen, in August, 1889, assuming to proceed under the authority of the Act of March 9, 1889, entitled "An Act Concerning Powers and Duties of Cities and Incorporated Towns, .. Providing the Mode and Manner of Making Street Improvements and Building Sewers Permitting Cities and Incorporated Towns to Issue Street and Sewer Improvement Bonds," passed an ordinance for the improvement of a certain designated street in the City on which a lot owned by the plaintiff abutted.

and

The contract for the improvement was duly 1. Section 2, Act of March 9, 1889, reawarded to Robert Kennington, who comquiring publication of a notice of the pleted the work accordingly, after which the passage of a municipal resolution declaring the city engineer made and reported his final estinecessity for certain improvements, which shall mate of the total cost of the improvement, and state the time and place where property owners apportioned the amount to the several lots and may make objections to the necessity for the con- parcels of land bordering on the street, as restruction thereof, does not contemplate the ap-quired by § 817, Elliott's Supp., being section pointment of a committee to bear the objections or the determination of the rights of the objectors, such determination being provided for in another section; hence such notice is not rendered invalid by the facts that objections are required to be filed with the city clerk, and that no com

mittee is appointed to hear them.

6 of the above Act. The report having been presumably adopted, and an assessment made by the proper authorities after due notice, it is averred that the contractor threatened to enforce payment of the amount assessed against the plaintiff's lot, and, being unable to pay, it 2. The validity of the issuance by a the sacrifice of his property, executed, under is alleged that the plaintiff, in order to prevent municipal corporation of bonds or certificates to raise funds to construct a street improve-ulated, in effect, that in consideration of havprotest, a written agreement in which he stipwhich they are issued, and that they are payable ing, the right to pay the amount assessed out of a special fund to be derived from assess- against his lot in installments, he would make ments upon the property bordering on the street no objection to the legality or regularity of his improved, and for the payment of which out of assessment, etc.

ment, which show on their face the

purpose for

It is also averred that in making the improve- | him laid before the common council, as in any ment the City incurred a debt of $97 for that other way. The right of the property owners portion thereof occupied by street and alley to appear before the common council for the crossings, which it is alleged is in violation of purpose of urging the validity of any objecthe Constitution of the State, and that the cor- tions filed with the clerk is in no way abridged poration is about to issue bonds, as provided in or impaired. The right to a hearing is sethe Act mentioned, to cover the cost of the im- cured to each property owner by another proprovement. vision of the Act. We discover no validˇobjection to the notice.

provided for, and after the report, with such | 849, it was held that bonds issued by the board alterations or amendments as may be made, is of county commissioners for the purpose of adopted, the common council is required to as- raising money to pay for the construction of a sess against the several lots or parcels of ground free gravel road do not constitute an indebtedthe several amounts which should be assessed ness against the county within the inhibition of on account of the improvement. The amounts article 13 of the State Constitution. The prinso assessed become a lien upon the several lots ciples which uphold that decision fully sustain or parcels of ground, and are to be placed on our conclusion in this. See also Ripley Co. the city tax duplicate and charged against the Comrs. v. Hill, 115 Ind. 316, 13 West. Rep. 774. several lots and become payable in 10 per cent Merely issuing bonds or certificates which installments to be collected as other taxes are show upon their face that they are issued in collected, with 6 per cent interest to be collected the course of constructing a street improvefrom the date of the final estimate, payable ment, and that they are payable out of a special semi-annually. It is provided that the pro- fund to be derived from assessments upon the ceeds arising from the assessments so made, property bordering on the street, is very far when collected, shall constitute a special fund from creating a debt against the City. An infor the payment of the costs of the improve- debtedness cannot arise unless there is either a ment, and the bonds and certificates thereafter legal, equitable or moral obligation to pay a provided for. Provision is made for the issu- sum of money to another, who occupies the ance of bonds by the City for the purpose of relation of a creditor, and who has a legal or raising money with which to pay for the im- moral right to call upon or constrain the debtor provement, or bonds or certificates may be is to pay. State v. Harces, 112 Ind. 323, 11 West. sued to the contractor in payment for the work; Rep. 845. but in either case it is required that the bonds shall bear the name of the street or alley improved or sewer constructed, and that they shall be payable out of the special fund provided for in the Act.

Without summarizing further, it is enough to say the remedy of the holders of the bonds or certificates is confined exclusively to the special fund provided for, and to the collection of assessments by enforcing the lien upon the lots or parcels of ground assessed with the cost of the improvement. The City is in no way liable for the payment of the bonds except out of the special fund to be accumulated from assessments made against the property benefited. According to the scheme promulgated in the Statute, in case the assessments are paid without delinquency, it is impossible for a single bond or certificate to mature in advance of the accumulation of a special fund devoted exclusively to its payment. If the assessments become delinquent, the remedy of the holders of the bonds or certificates is confined to the property. There is no liability against the City. The special fund provided for and the property are the sources from which the holders of the bonds and certificates must receive their pay, the city authorities acting merely as an agency for making and collecting the assessments, and as the custodian of the fund when the assessments are collected. In this they do not act as the agents of the City, but as special agents to accomplish a public end. Montgomery Co. Comrs. v. Fullen, 111 Ind. 410, 9 West. Rep.

651.

A fair interpretation of the Statute requires that the character of the bonds and the fact that they are payable out of a special street-improvement fund shall appear upon the face of the paper, thus making it apparent to the world that they are not to be regarded as the obligations of the corporation. While the common council and officers of the City are designated as the instruments to be used in executing the scheme devised, it is apparent all the way through that the entire expense of constructing an improvement for which bonds may be issued is to be borne exclusively by the property benefited.

In Strieb v. Cox, 111 Ind. 299, 9 West. Rep.

It is not always essential, in order to the existence of an indebtedness, that there should be an absolute legal right to coerce payment, as in that sense the State could never become indebted. Mayor of Baltimore v. Gill, 31 Md. 375.

It is, however, essential to the idea of a debt that an obligation should have arisen out of a contract, express or implied, which entitles the holder thereof unconditionally to receive from the promisor a sum of money, which the latter is under a legal or moral duty to pay without regard to any future contingency. Assessments for street improvements are upheld on the ground that the adjacent property upon which the cost of the improvement is assessed is enhanced in value to an amount equal to the sum assessed against it, and that the owners have received a peculiar benefit which the citizens do not share in common. Heick v. Voight, 110 Ind. 279, 9 West. Rep. 880; Ross v. Stackhouse, 114 Ind. 200, 13 West. Rep. 790; Hammett v. Philadelphia, 65 Pa. 146; Chamberlain v. Cleveland, 34 Ohio, 551.

The municipality, as such, is not benefited by the improvement, and there is, hence, under the law in question, neither a legal nor moral obligation to pay. The moral and legal duty of the City to pay depends upon the contingency or condition of the special fund out of which payment is to be made. If the officers of the City discharge the duties devolved upon them by the Statute, their power over the subject is exhausted. They are nowhere authorized to create an indebtedness against the City as such.

In Sackett v. New Albany, 88 Ind. 473, speaking in reference to the constitutional inhibition now under consideration, this court said: "By 'indebtedness' in this connection we mean an agreement of some kind by the city to pay money where no suitable provision has been made for the prompt discharge of the obligation imposed by the agreement."

Within the definition above stated, it is abundantly clear that no indebtedness can possibly result against a city from the issuance of streetimprovement bonds.

In Valparaiso v. Gardner, 97 Ind. 1, the general conclusion was reached, after most thorough and careful consideration, that, in case the current resources of a city are sufficient