facts stated in the special verdict make a case within the statute, he cannot recover; for a plaintiff must recover upon the theory on which his complaint is framed, or not at all. Leeds v. City of Richmond, 102 Ind. 372; S. C. 1 N. E. Rep. 711; City v. Uhl, 99 Ind. 531; Sims v. Smith, Id. 469, see page 477; W. U. Tel. Co. v. Reed, 96 Ind. 195; Same v. Young, 93 Ind. 118; Mescall v. Tully, 91 Ind. 96, and cases cited.

Contributory negligence is not a defense to an action based upon the statute imposing on railroad companies the duty of fencing their tracks. The disregard of this duty is not simply negligence on the part of a railroad company, but it is a tort, for it involves the direct violation of a positive and explicit law. So the statute treats the disregard of duty, and so our decisions have uniformly declared. Jeffersonville, etc., Co. v. Ross, 37 Ind. 545, see page 549; Louisville, etc., Co. v. Cahill, 63 Ind. 340; Louisville, etc., Co. v. Whitesell, 68 Ind. 297. A very forcible assertion of this doctrine is contained in the opinion of Judge COOLEY, in Flint, etc., Ry. Co. v. Lull, 28 Mich. 510. This rule, of course, only applies to cases where the railroad company is bound to fence; for, if the animals killed entered upon the track at a place where the railroad company was not bound to fence, then the contributory negligence of the owner will prevent a recovery. Cincinnati, etc., Co. v. Hiltzhauer, 99 Ind. 486. The rule declared in the case last cited, that if stock are killed at a point where the railroad company was not bound to fence, a recovery will be defeated by contributory negligence, does not apply here; for the place where the mare entered upon the track was one which the appellee was bound to protect by cattle-guards, and the failure to construct suitable guards, where it is the duty of the railroad company to construct them, is regarded as a failure to fence. Fort Wayne, etc., Co. v. Herbold, 99 Ind. 91. What we have said shows that the element of contributory negligence exerts no influence upon the decision of this case, and that our judgment must be given irrespective of that element.

An owner who abandons his animal cannot recover, although it entered upon the track of a railroad, and was killed at a place where the company failed to perform its statutory duty by fencing its track. Knight v. Toledo, etc., R. Co., 24 Ind. 402; Jeffersonville, etc., Co. v. Dunlap, 29 Ind. 426; Corwin v. New York, etc., R. Co., 13 N. Y. 42, see opinion DENIO, J., page 54. Sound principle supports this rule. If an owner were permitted to voluntarily put his domestic animals in a situation where it was almost certain that they would be killed by passing trains, and yet, in the event that they were killed, recover from the railroad company, it would open the way to great frauds, since it would enable the owner to recover for property voluntarily exposed to destruction; but this would not be the only evil result, for a further evil consequence would be that the temptation to get rid of animals not needed or not useful, at the expense of the railroad company, would endanger the safety of those who travel upon our railroads. Public policy requires that a man who voluntarily puts his property in a place where it is certain that it will be destroyed, shall not receive assistance from the courts. A man who willingly abandons his property to destruction, or pur

posely exposes it to a known danger, has no right, either in law or morals, to invoke the assistance of the courts of justice to secure pay for it. But, in order to deprive the owner of his rights under the statute, there must be something more than mere contributory negligence; there must be a voluntary abandonment of his property, or an intentional exposure of it to danger. This intention, to be sure, need not be expressed in direct words or acts. It may be inferred from circumstances, but it must nevertheless exist. When it does appear that it exists, then, under the maxim volenti non fit injuria, there can be no recovery. If a man consents to the destruction of his property, he cannot recover its value. If an owner rides his horse upon a railroad track, he must, under the reasoning of the cases to which we have referred, be deemed to have voluntarily exposed it to destruction. Such an act implies an assent to its destruction, and indicates an abandonment of it. The omission of the railroad company to do what the law enjoins, does not authorize an owner of property to place it on the track, for the legislature cannot be presumed to have intended that one who abandons his property shall nevertheless recover its value.

To us it seems clear that, if the appellant had ridden the mare upon the defendant's track, he would not have the slightest grounds upon which to base his claim for the value of his property. Such an act is something more than mere negligence; it is a willful trespass upon the property of another, exposing the trespasser to imminent danger. He who voluntarily puts his property in such a dangerous position assents to its destruction, for the maxim is that a man is presumed to intend the natural consequences of his act. The act of riding upon a railroad track is not defensible upon any ground save that of necessity, and he who does such a wrongful act without the warrant of necessity must abide the consequences. The case we have stated furnishes far stronger evidence of an abandonment of property than that of Knight v. Toledo, etc., Co., supra, and yet it was there said:

"Under such circumstances, we do not think the party injured can be heard to complain in a court of justice It would be a violation of one of the maxims of the law."

In Jeffersonville, etc., Co. v. Dunlap, supra, it was said:

"So, very clearly, if the owner drives his animal upon the track, that it may be killed, or allows it to wander under such circumstances as justify the conclusion that he desires that result, it cannot be supposed that the legislature intended that the railroad company should be liable on account of its failure to fence."

We assume, on the strength of these authorities and the principles which we have stated, that, if the appellant had himself ridden the mare· upon the track, he could not recover.

The borrower of the mare stood to the railroad company as the owner, for the latter had placed it in the borrower's possession and control. We suppose it to be too clear for debate that if the borrower had, while sober, purposely and deliberately ridden the mare upon the track, in front of an approaching train, that the company would not be liable. It would shock every just mind to affirm that a railroad company must pay for property placed in certain danger of destruction by the man to whom

the owner had intrusted it. If the act of the person placed in possession of the property would, in the case supposed, relieve the company from liability, it must have that effect in all cases where the injury to the property is due to the wrongful act of the person in possession in voluntarily exposing it to danger. Whether the person in possession of a horse rides in front of an approaching train, or rides upon the track where there is no means of escaping from trains, he must, in either case, be deemed to have voluntarily exposed the property to danger, and, in contemplation of law, to have consented to its destruction; for he is presumed to intend the natural consequences of his acts. We assume, then, that the appellant has no cause of action if the act of King can be regarded as such a reckless and intentional exposure of the mare to danger as constituted an abandonment of the property, or implies consent to its destruction. King's act in riding upon the track must be deemed to imply consent to the destruction of the mare, unless the fact that he was intoxicated is a sufficient cause for holding that the presumption that he did not intend the natural consequences of his act cannot prevail against him. It is clear, upon principle and authority, that it cannot have that effect.

Drunkenness is no excuse for crime; and, if it cannot be used as an excuse by one accused of crime, it is not conceivable that it can be used, where only property rights are involved, to avert consequences which usually result from a wrongful or negligent act. Goodwin v. State, 96 Ind. 550, and cases cited. In Bloom v. Franklin Life Ins. Co., 97 Ind. 478, it was held that the representative of a man who met his death while committing an assault and battery could not urge, as a cause for averting a forfeiture of a policy of life insurance, that the insured was drunk at the time he committed the unlawful act. Judge COOLEY says: "The fact that a tort was committed while a defendant was intoxicated is no excuse whatever." Cooley, Torts, 114. Another author says: "Intoxication should not benefit any man." Shear. & R. Neg. § 29, note. The adjudged cases agree that intoxication will not excuse a man from the exercise of the care and diligence required of all citizens. Yarnall v. St. Louis, etc., Ry. Co., 75 Mo. 575; Fitzgerald v. Weston, 52 Wis. 354; S. C. 9 N. W. Rep. 13; Denman v. St. Paul, etc., R. Co., 26 Minn. 357; S. C. 4 N. W. Rep. 605; Beach, Neg. 204; 1 Thomp. Neg. 430. The principle deducible from these authorities is that voluntary drunkenness is not available to avert the usual and natural consequence flowing from a man's act, and from this deduction flows the ultimate conclusion that a drunken man will be held to the same measure of responsibility as a sober one, and his actions judged by the same standard, except in cases of contract.

As this is the rule, the act of King in riding the appellant's mare upon the railroad track must be treated as if it had been done by a sober man, and, thus treated, it is evident that there can be no recovery by the appellant. This result is just in itself, and required by the highest consideration of public policy. If it were otherwise, then a drunken man might purposely ride his horse upon a railroad track, in front of a loco

motive, and secure a recovery by pleading his own wrong in voluntarily making himself drunk. Such a result no principle of right or justice would tolerate. If King had been sober, there could be no doubt that the appellant could not recover; and, as King's drunkenness cannot be permitted to change the nature of his act, it conclusively follows that his drunkenness will not avail to change the results that flow from that act. The same rule applies to him drunk, as to him sober. If it was otherwise, a premium would be put on drunkenness, and that the law has never yet done, and it is not hazardous to affirm, never will do. Judgment affirmed.

NOTE.

For full discussion of the duty of railroad companies to fence their track and construct cattle-guards, and their liability for damages to stock occasioned by failure to do so, see Louisville, N. A. & C. Ry. Co. v. Goodbar, (Ind.) 2 N. E. Rep. 337, and note, 338345.

It is said in Burlington & M. R. R. Co. v. Webb, (Neb.) 24 N. W. Rep. 706, that, under a law requiring a railway company to fence, where it neglects to maintain the required fences and cattle-guards along its road, and horses get thereon and are injured or killed by the engines or trains running on the road, the railroad company is liable to the owner in damages, and that the negligence of the owner in allowing the horses to escape from him will constitute no defense to the action.

The supreme court of Kansas held in Atchison, T. & S. F. R. Co. v. Gabbert, 8 Pac. Rep. 218, that the law requiring all railroad companies to maintain fences and cattleguards, where a person permits his jack to run upon his own premises, which are inclosed with a fence, but through which a railroad, not inclosed with a fence, is constructed and operated, and the jack is unattended by any one, and passes from the owner's premises upon the unfenced railroad track, and is there killed by the company in the operation of its road, that the plaintiff will be entitled to recover damages from the railroad company. See, also, Hovorka v. Minneapolis & St. L. Ry. Co., (Minn.) 25 N. W. Rep. 595.

(105 Ind. 346)

FRANK, Adm'r, v. GRIMES. 1

Filed January 22, 1886.

1. TRIAL-VERDICT ANSWERS OF JURY TO INTERROGATORIES-PART OF RECORDPRESUMPTION.

Answers of a jury to special interrogatories are part of the record without being incorporated in a bill of exceptions, and where such answers appear in the record it will be presumed that the interrogatories were properly submitted to the jury by the court.

2. SAME-WHERE IRRECONCILABLE WITH General VERDICT-SPECIAL FINDINGS -CONTROL.

When the special findings of a jury are irreconcilably in conflict with the general verdict, judgment should be rendered on the former, notwithstanding the general verdict.

Appeal from Allen circuit court.

A. A. Chapin, for appellant.

Marshall & McNaquy, for appellee.

Howk, J. This suit was commenced by Henry Heist, then in full life, but since deceased, against the appellee, Grimes, in the Whitley circuit court. Heist's complaint contains two paragraphs. The first paragraph counted upon a written instrument, alleged to have been exe

Rehearing denied.

cuted by appellee, Grimes, to Henry Heist, of which the following is a copy:

"Settled all account in full up to date, November 27, 1877, and balance due H. Heist, $804.21, to be paid within thirty days from date, or note given one year after date, with ten per cent interest, if he fails to do so.

[Signed]

"J. GRIMES."

In the second paragraph Heist alleged that appellee was indebted to him in the sum of $8,738.91, "for money had and accounts paid, laid out, and expended, and personal property sold and delivered at his special instance and request," whereof a bill of particulars was filed therewith. Appellee appeared to the action, but, before his answer was filed, on the application of Heist, the venue of the cause was changed to the De Kalb circuit court. In that court, before any steps were taken therein, the venue of the cause was again changed to the Allen circuit court. There the death of Henry Heist, testate, was suggested to the court, and the appellant, Manoah Frank, administrator with the will annexed of such decedent's estate, was substituted as plaintiff in this action. Appellee then filed his answer in six paragraphs, and also his cross-complaint in a single paragraph. In the first paragraph of his answer, appellee averred, under oath, that he did not, nor did any one thereunto by him lawful authorized, make, execute, or deliver the written instrument counted upon in the first paragraph of complaint. The second paragraph of appellee's answer was a general denial of the paragraph of complaint. In his third paragraph of answer appellee alleged that he had fully paid and satisfied the plaintiff's entire cause of action long before the commencement of this suit. In each of the fourth, fifth, and sixth paragraphs of his answer, appellee pleaded special matters of set-off. Appellant replied, in two paragraphs, to the special paragraphs of appellee's answer, as follows: (1) A general denial; and (2) payment in full of the matters of set-off. In his cross-complaint appellee alleged that in 1870 he entered into a contract with Henry Heist, whereby he was to sell and deliver to Heist, from time to time, all the black walnut, white walnut, poplar, ash, cherry, and butternut lumber, which appellee could purchase during the continuance of such agreement; that Heist agreed to pay appellee therefor certain named prices; that appellee should deliver the lumber sold to Heist at the various railroad stations which might be most convenient for appellee, at which stations Heist agreed to inspect and receive the same, and pay appellee therefor; that appellee from time to time, during 1870, 1871, 1872, 1873, and 1874, furnished Heist, under such agreement, a large amount of lumber, of the aggregate value of $13,000, whereof a bill of particulars was therewith filed; that Heist paid appellee on such lumber, from time to time, various sums, amounting in the aggregate to $7,000; that all the accounts between Heist and appellee remained open and unsettled, and there had never been an accounting between them; that appellee had often demanded of Heist a settlement of their transactions, but Heist had, upon previous pretexts, postponed the same, and refused to make any settlement with appellee; and that Heist was indebted to ap