Appellant, in support of his motion, relies on that part of section 5 which reads as follows: "If in any case of a separation of grades of a railroad and a highway under the provisions of this act, the highway elevated or depressed shall be occupied by the railway of any street railroad, interurban street railroad or suburban street railroad company and it shall be neces sary to add to the cost of such separation by reason of such use by such railway of such highand enforced against such street railroad, interurban street railroad or suburban street railroad company as provided herein in case of steam railroads." be charged against such railroad as provided is the only error assigned and not waived in therein in the case of steam railroads. Such this court. section further provides that if the line of any street railroad or interurban street railroad is so located as to require a separation of the grade of such line and the highway or is otherwise affected, the commission shall have power, as in case of steam railroads, to make such railroad a party, and prescribe the character and extent of separation so required, and shall determine the manner and extent to which such company may be affected, and that the cost of any such separation or change or alteration in the grade of such company so required shall be borne one-fourth by the county and three-way, such additional cost shall be charged to fourths by such company. Held that, in the absence of some special circumstances, where an interurban railroad and a steam road crossed the highway at right angles near each other, it was not improper for the commission to require each company to bear 75 per cent. of the cost of the changes and structures necessary on their respective rights of way, and to apply the same rule to the cost of the approaches, each road being required to construct one approach, instead of merely requiring the interurban road to pay the additional cost made necessary by the existence of its line, as the provision as to imposing the additional cost incurred on interurban roads applies to interurban roads occupying the highway longitudinally. Appeal from Circuit Court, Laporte County; James F. Gallaher, Judge. Proceeding before the Public Service Commission by the Board of Commissioners of St. Joseph County against the Chicago, Lake Shore & South Bend Railway Company and others. From a judgment sustaining and affirming the order of the commission, the Railway Companies appeal. Affirmed. F. J. Lewis Meyer, of South Bend, for appellants. Ele Stansbury, of Indianapolis, and Patrick J. Houlihan and Graham & Crane, all of South Bend, for appellee. The New York Central is a steam road; the Chicago, Lake Shore & South Bend Railway Company and the Chicago, South Bend & Northern Indiana Railway Company are both interurban roads. The tracks of each of these three companies cross said public highway at right angles, and within close proximity of each other. Looking to that part of the section of the act quoted, in our opinion, it has reference to street, interurban, or suburban railroads which occupy the highway longitudinally, and the cost therein referred to which should be paid by such road is entirely different from the costs made and charged against railroads, steam or interurban, in a separation of grade proceedings, where such railroad tracks cross the highway at right angles. In the latter case, as the one before us, it is clear that the subject of costs for the making of the proposed improvement is controlled by that part of section 5 which reads as follows: "If in any case of separation of a grade of a MYERS, J. This case was begun by the highway and a steam railroad under the provifiling of a petition by the board of com- sions of this act the line of any street railroad, missioners of St. Joseph county, and others, railroad company is so located as to require a interurban street railroad or suburban street with the Public Service Commission, under separation of the grade of such line and the sections 4 and 5, Acts 1913, p. 508, being sec- highway or is otherwise affected, the commistions 5556d, 5556e, Burns' 1914, asking for an sion shall have power, as in case of steam railorder separating the grade of the crossing of roads, to make such street railroad, interurban street railroad or suburban street railroad comthe Michigan Road, now known as the Lin- pany a party to the proceedings for that purcoln Highway, near New Carlisle, Ind., from pose and serve them with notice as in the case that of the New York Central Railroad of steam railroads, and by order prescribe, as Company, the Chicago, Lake Shore & South separation so required, and shall determine the herein provided, the character and extent of Bend Railway, and the Chicago, South Bend manner and extent to which said company or & Northern Indiana Railway Company. companies may be affected and the cost of any Such proceedings were thereafter had be- such separation or of any change or alteration fore the commission, resulting in an order in the grade, roadbed or tracks of any such company or companies so required shall be for the separation of the grade of the high-borne one-fourth by the county or counties in way, and the tracks of these railroads. From this order the New York Central Railroad and appellant appealed to the St. Joseph circuit court. Thereafter the venue was changed to the La Porte circuit court, where the cause was tried, resulting in a judgment sustaining and confirming the order made in the premises by the commission, without change or modification. Thereupon appellant, by a motion to modify the judgment, in brief, sought to have the cost of the proposed improvement so adjudged against it reduced. This motion was overruled, and this ruling which such separation is required and threefourths by such company." If it is true, as appellant insists, that the power to separate the grade of a public highway and that of an interurban road is only incidental to the separation of grades of steam roads, it is nevertheless a power which the commission, if the facts warrant, may exercise. In this case the commission did act, and its right to do so is not questioned. Its order extended to each company separate ly, requiring only the changes and structures necessary on their respective rights of way to complete the subways as in the order specified, the cost in each case to be borne 75 per cent. by the company and 25 per cent. by the county. The same rule as to the payment of the cost of the approaches was observed, the steam road to construct one of the approaches, and the interurban roads, together, the other. Appellant contends that it should not be required to pay any part of the cost of either of the approaches, for the reason that the steam road, under the act, is required to separate the grades, and were it not for the proximity of the interurban lines, it would be compelled to construct both of the approaches, but by reason of the location of the interurban roads, the cost of one of the approaches is taxed to them, when the statute only contemplates that they pay the additional cost incurred by reason of the lengthening of the approaches and other additional cost made necessary by their presence. Judgment affirmed. (187 Ind. 413) KENT V. COWDIN. (No. 22998.)* PROVEMENT. Where the board of commissioners of a county established by order an improvement consisting of paving a road, it had the power, pending the improvement, to correct an error made through inadvertence on the part of the person who prepared the report of the reviewers consisting of an inaccurate description of the line staked for the improvement, such proceedings remaining in fieri until the improvement is completed and approved, and until then the record is subject to correction on proper showing. Appeal from Circuit Court, White County; James P. Wason, Judge. Proceeding by Laurie T. Kent to have certain improvements accepted by White County. Thomas Cowdin files objections. From a judgment denying acceptance of the road, the former appeals. Reversed, with directions. L. D. Carey, George F. Marvin, and E. B. Sellers, all of Monticello, for appellant. George W. Kassebaum, of Monticello, C. Robert Pollard, of Delphi, and Addison K. Sills and Addison K. Sills, Jr., both of Monticello, for appellee. SPENCER, C. J. This proceeding has its origin in a petition filed by one Charles E. Gay and others before the board of commissioners of White county, asking for the improvement, by paving with crushed stone, of a certain existing public highway in that county. The proposed work was less than three miles in length, and, in accordance with the provisions of sections 7714-7719, Burns 1914, such further proceedings were had as resulted in an order of the board of commissioners establishing the proposed improvement in accordance with the report of the viewers and engineer. The contract for the construction of the road was subsequently let to appellant, and provided, in part, that he should be allowed "to vary from the line of improvement described in the viewers' report, at a point where the said line runs into Spring creek, a sufficient distance to avoid filling the creek, under the direction of the superintendent and engineer in charge of said work." During the progress of the work, certain of the original petitioners filed with the board of commissioners a supplemental petition, in which they alleged that, through mistake and inadvertence on the part of the person who prepared the report of the viewers, that report contained an inaccurate deScription of the line which had been staked for the proposed improvement and on which it was to be constructed. This petition further called attention to that portion of the contract which we have quoted above and set forth a correct description of the line of improvement, which, it is claimed, deviates from the description contained in the viewers' report only to the extent contemplated by the contract. The board of commissioners thereafter found the facts, stated in this petition to be true, and entered a supplemental order modifying and correcting their original order establishing the improvement by providing that the completion of said improvement on the corrected line, and in all other respects according to the plans and specifications first adopted, should be held to be a compliance with the contract between appellant and the board. Subsequently, the superintendent and engineer in charge of the improvement filed in the office of the auditor of White county their verified reports showing that the work had been completed according to the plans, plats, profiles, and contract under which said improvement was let, “as the same have been modified, changed, and corrected by the board of commissioners of White county, Ind., since the establishment of said road." On objections filed, the board heard evidence and determined that the improvement had been properly completed. An appeal was taken to the White circuit court, where the matter was tried de novo and an acceptance of the road there denied, on the evident theory that the board of commissioners had no power, under a supplemental petition, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to correct the description of the line of im-12. NEWSPAPERS 1(1)—DESIGNATION OF OFprovement or to modify the plans for the FICIAL NEWSPAPERS NECESSITY. proposed improvement after the same had been established and the contract let. that it should express the true line of im- Our conclusion that the supplemental order entered by the board of commissioners is valid serves to dispose of the principal issues presented by the appeal and renders unnecessary the consideration of certain other questions which may not arise on a retrial of the case. Judgment reversed, with instructions to sustain appellant's motion for a new trial and for further proceedings not inconsistent with this opinion. (186 Ind. 686) CHANEY et al. v. HADDON TP. OF SULLI- (Supreme Court of Indiana. Dec. 18, 1917.) trustee to publish notices in plaintiffs' newsIf the law made it the duty of the township paper, they were entitled to an award of the printing contract before rendering their services. Appeal from Circuit Court, Sullivan County; Wm. H. Bridwell, Judge. Action by Dirrelle Chaney and others against Haddon Township of Sullivan County, Ind. From a judgment for defendant, plaintiffs appeal. Affirmed. J. W. Lindley, of Sullivan, for appellants. Charles D. Hunt and Gilbert W. Gambill, both of Sullivan, for appellee. SPENCER, C. J. This is an action to recover for services alleged to have been rendered by appellants to appellee in accordance with the provisions of section 1347, Burns 1914, which provides: treasurers and township trustees of the several "That, in all cases wherein the auditors and counties of this state are required by law to publish notices and reports affecting county and township affairs in a public newspaper, said are hereby required to publish said notices as auditors and treasurers and township trustees by the several statutes required in two newspapers published in their respective counties, representing two political parties casting votes in such counties respectively at the last preceding general election, one of, which notices or reports shall be published in a newspaper representing the party casting the highest number of votes at said election, if there be such newspaper published in said county; and in case there are not published in said county newspapers representing two political parties casting votes at the last preceding general election, then in that case one of such notices or reports shall be published in an independent newspaper." It appears from the facts found specially by the trial court that in the years 1913 and Burns' Ann. St. 1914, § 1347, requires town- 1914 appellants, as the owners of the Sulliship trustees to publish notices and reports re- van Union, the only Republican newspaper quired to be published in two newspapers pub-published in Sullivan county, printed in said lished in the county representing two political parties casting votes in such county at the last preceding general election, one of which notices or reports shall be published in a newspaper representing the party casting the highest number of votes at such election, if there be such newspaper published in the county, and provides that, in case there are not published in the county newspapers representing two of such parties, then one of such notices or reports shall be published in an independent newspaper. "A township trustee published notices, estimates, and reports in a newspaper representing the Democratic party, the party casting the highest number of votes, and in the Carlisle News, which did not represent either the Republican or Democratic party. Plaintiffs, the publishers of a Republican newspaper, published such notices, estimates, and reports without direction from the trustee. Held that, assuming that publication cannot be made in an independent or nonpartisan paper if there are two political newspapers in the county, still plaintiffs could not recover for the publication of the notices and reports without establishing that the Carlisle News did not represent some of the parties casting votes at the preceding election other than the Republican or Democratic party, and that there were not other political newspapers published in the county. newspaper certain notices, estimates, and reports required to be published by the trustee of Haddon township, in said county; that such printing was not done pursuant to a contract with or at the request of the township trustee or other public officer, but was done wholly on the initiative of appellants, who obtained such notices, estimates, and reports from the office of the auditor of Sullivan county after the same had been duly filed by the township trustee; that copies of such notices, estimates, and reports were duly published, under the direction of the trustee, in the Sullivan Democrat and the Carlisle News, two other newspapers published in Sullivan county, of which the former was a Democratic newspaper, while the latter did not represent either the Republican or the Democratic political party, and was not known as an organ of either of said parties; that at the general election immediately preceding the rendition of the services in question votes were cast in said township For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and county by each of the Democratic, Republican, Progressive, Socialist, and Prohibition parties; that the Democratic party cast the highest number of votes, and the Republican party cast the next highest number. Other facts found have no material bearing on our conclusions or on the issues here presented.. defendant railroad company propounded an interrogatory asking whether, if the coupling apparatus was out of repair by reason of the coupling rod being choked with sand so that it did not move easily, was it necessary for the brakeman if by reason thereof he went between the cars to have directed the cars to be backed while he was between them, if he did direct them. The jury answered, "No evidence that he did direct them." Held, that as the interrogatory may be construed as propounding questions whether the coupling apparatus was out of repair, whether by reason thereof the brakeman went between the cars, whether he directed the cars to be backed while he was between them, and whether it was necessary for him to have wholly unresponsive, being in effect a negation so directed, the answer cannot be rejected as of the question whether the brakeman directed the cars to be backed while he was between them, which negative rendered it unnecessary to answer any other questions. It is the contention of appellants: (1) That the statute in question makes it mandatory on a township trustee to publish all notices, estimates, and reports in two political newspapers, if such there are, before publication can be made in an independent or nonpartisan paper; (2) that the Sullivan Democrat and the Sullivan Union were the only two political newspapers published in Sullivan county; and (3) that, under the statute and the facts above stated, the trustee of Had-3. MASTER AND SERVANT ←—297(2) — INTERdon township was required to print all notices, estimates, and reports in appellants' paper. ROGATORIES-CONFLICTING ANSWERS. In such case, the jury in answering other special interrogatories expressly found that the brakeman told the conductor it was all right to back up. Held, that as the brakeman could not give signals to the engineer while between the cars, but could only communicate through the conductor, and as the court should not reject answers to special interrogatories as nullifying each other if by any fair and reasonable construction they can be harmonized, the answers to the several interrogatories should be construed as finding that, while the brakeman did not give the conductor to back up the train, and hence immediate directions to the engineer, he did tell the several answers cannot be rejected. [1, 2] It is to be noted, however, that the finding of facts is silent as to whether other political newspapers were published in Sullivan county, and that it does not indicate whether the Carlisle News was independent and nonpartisan, in its political policy. It is true that the Carlisle News was neither Democratic nor Republican, but other political parties cast votes in Sullivan county at the last preceding general election, and, so far as appears from the findings of fact, the Carlisle News may have represented one of such parties. If we assume, therefore, without deciding, that appellants' interpretation of the statute is well founded in law, it is still apparent that they have failed to establish the existence of facts necessary to its application in this case. Furthermore, if the law made it the duty of the township trustee to publish notices in appellants' paHOTTEL, J. [1, 2] In this case the appelper, they were entitled to an award of the lee has filed a petition for rehearing and printing contract before rendering their serv-supported the same by a brief in which it is ices. Cheney v. State ex rel., 165 Ind. 121, 74 N. E. 892. Appeal from Circuit Court, Bartholomew For former opinion, see 114 N. E. 236. Carter & Morrison, of Shelbyville, for appellant. Osborn & Hamilton, of Greensburg, for appellee. very ably and earnestly urged that the court has erred in its opinion herein. It is contended that the court erred: (1) In holding that the answer to interrogatory 44 was not responsible and should therefore be disre garded; (2) in holding that the other answers to interrogatories are in irreconcilable conflict with the general verdict. The first contention will be first considered. Said interrogatory and answer are as follows: "If the coupling apparatus was out of repair by reason of the coupling rod being choked with sand so that it did not move easily, was it necessary for the decedent, if by reason thereof he went between the cars, to have directed the cars to be backed while he was between them, if he did direct them? Answer: No evidence that he did direct them." This interrogatory is complicated, and is subject to the criticism that the question which it seeks to have answered is not made clear and certain because of the fact that several questions are involved therein. Ap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Superseded by opinion in Supreme Court, 121 N. E. 438. Superseded by opinion, 128 N. E. 38. Re 118 N.E.-9 pellant, however, propounded it and is responsible for its infirmities, and hence should be bound by the effect of any answer that can fairly be said to be responsive to any reasonable interpretation thereof. National Motor Vehicle Co. v. Kellum, 184 Ind. 457, 109 N. E. 196, 199; Indianapolis Coal, etc., Co. v. Dalton, 43 Ind. App. 330, 335, 87 N. E. 552. In determining whether the answer is responsive, we think it will be helpful to indicate the separate questions which appellee claims are included in the interrogatory. They are as follows: (a) Was the coupling apparatus so out of repair by reason of the rod's being choked with sand that it did not move easily? (b) By reason thereof, did decedent go between the cars? (c) Did he so direct the cars to be backed while he was between them? (d) Was it necessary for decedent to have so directed the cars to be backed while he was between them? It is claimed by appellee, in effect, that the answer made to said interrogatory was responsive to that part of it represented by question (c) supra, and that the form of the interrogatory was such that a negative answer to question (c) was a complete answer to the entire interrogatory, in that such answer made an answer to the remaining questions unnecessary. After a careful examination of this interrogatory in the light of appellee's contention, we are convinced that it is at least reasonably susceptible of his interpretation thereof, and, when so interpreted, the question whether the answer thereto is responsive is practically the same question as would be presented if a witness upon the witness stand, in response to a question, “What did he say if he said anything?" should answer, "He did not say anything." We do not think that a court would strike out such an answer on the ground that it was not responsive. tories, the fact that the court, in the original opinion, ignored and disregarded it in determining the question of conflict between the other interrogatories and the general verdict, was not of importance in its effect upon the correctness of its conclusion upon the main question. It becomes important therefore that we determine whether there is in fact any conflict between interrogatory 44 and the other interrogatories. In the determination of this question, it must be remembered that it is the duty of the court to reconcile such answers with each other where it can be reasonably done. William Laurie Co. v. McCullough, 174 Ind. 477, 90 N. E. 1014, 92 N. E. 337, Ann. Cas. 1913A, 49; Nordyke & Marmon Co. v. Whitehead, 183 Ind. 7, 106 N. E. 867. In our judgment the particular wording of the respective interrogatories, claimed to be contradictory in the instant case, furnishes a means of reconciling any apparent conflict between them. The following are the interrogatories and answers claimed by appellant to be in conflict with the general verdict, and which appellee claims are nullified by the answer to interrogatory No. 44: "I. 33. After said train was slacked ahead and while he was between the cars, did not the deceased say, 'All right, back up? A. Yes." "I. 35. Did not the conductor then give the signal to the engineer to back the train? Yes." A. "I. 40. Did not the conductor, in response to what the decedent said, while the latter was between the cars, give the signal to the engineer to back the cars? A. Yes. "I. 41. Was not the car that injured the decedent backed in response to the signal given to what the decedent said while he was between the the engineer by the conductor after he heard cars? A. Yes." "I. 49. Did not the conductor understand from what the decedent said while he was between the cars that the decedent directed that they should be backed? A. Yes. "I. 50. Was not the statement made by the decedent while between the cars such as was then understood by railroad men to mean the cars were to be backed without reference to whether decedent was between them? A. Yes. "I. 51. Were the cars backed at the time the decedent was injured until after he, while between the cars, made the statement the conductor said he heard just before the cars were backed a second time? A. No." [3] The holding in the original opinion that said answer was not responsive to the question propounded is therefore modified as indicated, but such holding was not of controlling influence, except as incidental to the determination of the question whether there was irreconcilable conflict between the answers to the interrogatories and the general verdict. As was said, in effect, in the original opinion, appellee in his original brief did not seriously contend that there was not irreconcilable conflict between many of the answers to the interrogatories and the general verdict; but their contention was that: "After eliminating such as are in conflict with and neutralize and nullify each other, the oth-tween the cars? Answer No. 39. ers are not inconsistent or in irreconcilable conflict with the general verdict." moved during the time he was trying to couple "I. 54. Was the car that injured the decedent it and the other car, until he had said or done that which indicated to the engineer or conductor that it should be moved? A. No." Interrogatory No. 44 was relied on by appellee as contradicting and nullifying those which appellant claimed to be in conflict with the general verdict, and hence, if it was not in fact in conflict with such other interroga Another interrogatory and answer of influence in the determination of said question are as follows: "Interrogatory No. 39. Did not the conductor hear what the deceased said while he was beYes." In each of the above interrogatories we have italicized the word or words which in our judgment furnish the key to the explanation of any apparent conflict between their answers and the answer to interrogatory No. 44, supra. It will be seen that where the interrogatory propounded involved the question |