Merrill v. Abbott.

between Tenth and Fourteenth streets, including the gravelling of the sidewalks, according to plans and specifications then on file in the office of said engineer.

At such next regular meeting the common council awarded the contract for the proposed grading and gravelling to Joseph Abbott, the appellee, who, after giving bond, proceeded with the work, and completed it in due time, receiving some partial estimates as he progressed with the work, and a final estimate after the completion of his contract. This final estimate was approved by the common. council and assessed proportionately against the lots and parcels of ground fronting on the work done by the appellee. The appellant, being the owner of one of these lots so assessed, and failing to pay the amount assessed against such lot, a precept was issued to the treasurer of said city of Terre Haute, commanding him to sell her said lot to pay the assessment thus standing against it. Before a sale could be made under such precept, the appellant appealed to the circuit court, where a demurrer was overruled to the transcript constituting the complaint, and where, upon a trial, there was a verdict and judgment in favor of the appellee, for the amount assessed against said lot.

The resolutions upon which the city engineer acted in advertising for sealed proposals, and upon which the contract was let to the appellee, were as follows:

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Resolved, That, in the opinion of this Council, the present condition of Main street, from the east line of the Vigo Woollen Mills to Fourteenth street, is not only a public nuisance, but detrimental to the interests of the city. Therefore be it further

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Resolved, That the city engineer be and is hereby instructed to advertise for bids for grading and gravelling the said Main street, from the east line of the Vigo Woollen Mills to Fourteenth street, including sidewalks. Said work to be done at the several property holders' expense on the

Merrill v. Abbott.

line of said work. Bids to be read at our next regular meeting."

It is well settled, that, before the common council of a city can proceed to advertise for proposals and to let a contract for the improvement of any street of such city, there must first be an order of said council for the improvement of such street adopted by a sufficient vote and entered of record as a part of the proceedings relating to such street improvement. The City of Delphi v. Evans, 36 Ind. 90, and cases there cited. Whether such order shall be by ordinance, by resolution, or by a simple order in writing, has been held to be immaterial, the only requisite in that respect being that the order shall be substantially sufficient in its terms. It is objected that the resolutions above set out did not amount, in legal effect, to an order for the improvement of that portion of the street to which they relate, and that consequently the court below erred in overruling the demurrer to the complaint.

After a careful review of the authorities, we have come to the conclusion that this objection is well taken. We feel justified in saying that an order for a street improvement must, in appropriate terms, either ordain, resolve, or declare that the street to which it refers shall be improved, specifying the nature, character, or plan of the proposed improvement in such a way as to give at least a general direction to the letting of the work and the execution of the contract contemplated by such order.

Such an order is, in some respects, analogous to a judicial act, and ought clearly and explicitly to prescribe what it authorizes to be done as regards the contemplated improvement to which it is intended to apply.

Judged by these definitions, it is evident that the resolutions before us did not constitute a proper order for the improvements which the appellee claims he made under them, but amounted only to an authority to the engineer

The Indianapolis and Vincennes R. R. Co. v. McCaffrey.

of the city to advertise for bids, leaving everything else practically open for further consideration.

In the case of The City of Logansport v. Legg, 20 Ind. 315, an order similar in its purport to the resolutions under discussion was brought to the attention of this court, but it was held invalid for want of sufficient votes for its adoption, without any ruling either upon the form or the substance of the order itself. Hence that case affords no precedent against our present ruling in the case in hearing.

As a conclusion, we must hold that the court below erred in overruling the demurrer to the complaint, aud that, for that reason, the judgment will have to be reversed. Musselman v. Manly, 42 Ind. 462; Brookbank v. The City of Jeffersonville, 41 Ind. 406; Moberry v. The City of Jeffersonville, 38 Ind. 198; Kretsch v. Helm, 38 Ind. 207; McEwen v. Gilker, 38 Ind. 233.

The judgment is reversed, at the costs of the appellee, and the cause remanded, with instructions to the court below to sustain the demurrer to the complaint.

Opinion filed at May term, 1878.

Petition for a rehearing overruled at November term, 1879.

THE INDIANAPOLIS AND VINCENNES R. R. Co. v. MCCAFFREY. JUDGMENT NON OBSTANTE.-New Trial.-Practice.-A motion for a judg ment on the answers to interrogatories, notwithstanding the general verdict, does not preclude a motion for a new trial.

SAME.-Interrogatories to Jury.-Where the interrogatories and answers do not bring out the facts of the case with the certainty required to enable the Supreme Court to judge correctly of its merits, that court will respect the judgment of the court below.

SAME.-Repugnancy.-Where the repugnancy between answers to interrogatories and the general verdict is not such that it could not have been

The Indianapolis and Vincennes R. R. Co. v. McCaffrey.

removed by evidence legitimately admissible under the issues in the cause, it is not available, even though all the facts necessary to justify the rendition of a judgment on such general verdict do not appear in said

answers.

QUERY.-Where wo new trials of an action have been had, can any question upon the evidence be considered by the Supreme Court on appeal ? From the Inox Circuit Court.

C. M. Allen, for appellant.

G. G. Reily and W. C. Johnson, for appellee.

PERKINS, J.-Johanna McCaffrey sued the appellant for carelessly killing her infant son, being about ten years of age, without negligence on his or her part. She was a widow, and her son was without a legal guardian.

Arswer in denial.

Trial by jury; verdict and answers to interrogatories as folle vs:

"We, the jury, find for the plaintiff, and assess her damages at five hundred and twenty-five dollars.

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And said jury at the same time return into open court the interrogatories heretofore submitted to them, with their answers thereto, as follows:

1st. At what time and at what place was William McCaffrey killed?

"Ans. Killed December 2d, 1875, on the Indianapolis & Vincennes railroad track, at the crossing of Vigo street, in Vincennes, Indiana.

"2d. Was the train being moved upon the side-track, where the railroad company was accustomed to move trains for the purpose of depositing cars or making up trains, immediately before the killing of William McCaffrey, on December 2d, 1875?

"Ans. It was.

"3d. At what rate of speed was the said train being backed in upon said switch on December 2d, 1875, immediately before the killing of William McCaffrey?

"Ans. About three miles per hour.

The Indianapolis and Vincennes R. R. Co. v. McCaffrey.

"4th. Were the requisite number of brakemen, engineers and firemen on said train at the time the accident occurred, and were they in their proper places and in the discharge of their duties at the time of said accident on December 2d, 1875, and immediately before and at the time of the killing of William McCaffrey?

"Ans. There were not.

"5th. Did Mrs. McCaffrey, the plaintiff in this case, make any effort whatever to ascertain whether a train was approaching or not, on December 2d, 1875, and immediately before and at the time of the killing of William McCaffrey?

"Ans. She did not.

"6th. Did Mrs. McCaffrey, the plaintiff, either look to see or listen to hear whether a train was in motion or not, on December 2d, 1875, and immediately before and at the time of the killing of William McCaffrey?

"Ans. She did not.

"7th. Did the brakemen have their lamps burning at the time the accident occurred, and were they in their proper positions, on December 2d, 1875, and immediately before and at the time of the killing of William McCaffrey?

"Ans. They were not.

"8th. Did Mrs. McCaffrey, the plaintiff in this case, know, or have the means of knowing, that the switch upon which the train was backed was in daily use for the switching of trains, standing cars, and making up of trains by the railroad company, on December 2d, 1875, immediately before and at the time of the killing of William McCaffrey?

"Ans. She did.

"9th. Did William McCaffrey, the plaintiff's infant son, look to see or listen to hear whether a train was in motion or approaching, just before the happening of the accident,