or other road-paving material, was conferred on boards of commissioners of the several counties by section 62 of an act concerning highways, approved March 8, 1905 (Acts of 1905, page 521; Burns 1914, § 7711a). The power thus granted extended to any new der an order of the board of commissioners ing, grading, and paving with stone, gravel, of Jackson county on petition of the voters, and after an election to determine the will of the people as to such improvement had been held by the voters of that township. It was further alleged that the former improvement was completed and accepted by the board of commissioners of the county before the peti-highway, or to any highway already estabtion in this proceeding was filed, and that it then became and still was a part of the free gravel road system of Jackson county, which the law requires shall be kept in repair by the entire county by means of a tax to be levied for that purpose. Appellees filed a demurrer to this answer, which the board of commissioners sustained, after which judgment was entered, ordering the improvement constructed as proposed. On appeal to the circuit court the demurrer to this answer was again presented and sustained, upon which appellants elected to stand on their answer, and judgment was rendered in favor of appellees. lished, and by other sections of the act provisions were made for paying the cost of such improvements by the levy of a tax against the property of the township in which the improvement was made. In the absence of anything to indicate an intention to the contrary, there could be little doubt that the power thus conferred was intended to be a continuing one, which could be exercised as often as necessity might require. In the case of Evans v. West (1891) 138. Ind. 621, 38 N. E. 65, it was said: "A public drain may be established over the line of another drain. Meranda v. Spurlin, 100 Ind. 380; Denton v. Thompson, 136 Ind. 446 been given why a gravel road may not be treat[35 N. E. 264]. And no sufficient reason has ed in like manner.' [1-5] It is the position of appellants that the board of commissioners of a county had no power or authority under the statute, This language was used in the decision of prior to the taking effect of the act of 1915, a case involving the construction of a free to entertain any petition or to make any order for the second or other subsequent im- gravel road under section 6855, Burns 1894; provement of a highway which had already which covered a part of a highway previously been improved as a free gravel road under improved. The powers conferred by section the statute of the state. Appellants assert 62 of the act of 1905 were clearly sufficient that, once a road is improved and accepted to authorize a second or subsequent improveas a part of the free gravel road system of ment of a highway under the provisions of the county, it must be maintained at the that act, but the power was not granted in The Legislature of 1913 atexpense of the taxpayers of the entire coun- express terms. ty as provided by the statutes on the sub-tempted to amend this section by an act apject of the repair of free gravel roads, and proved March 14th of that year, by which that for this reason the statute did not con- act power to reimprove highways was extemplate that such a road should be repair- pressly granted (Acts 1913, page 690); but ed, resurfaced, or reimproved at the sole ex-this act was held ineffective for the reason pense of the taxpayers of the township in which it is located. A distinction must be observed, however, between the repair of a public improvement of this kind and a reconstruction. If it were the purpose of this proceeding to restore the road to its original grades and specifications by the use of the same material with which it was originally improved, the work so contemplated might be properly regarded as repair; but this proceeding contemplates a reimprovement of the highway with material entirely different from that used in the original improvement. Such a road could not be properly made at the expense of the entire county under the guise of repairs. Resurfacing a highway with a different material is not a repair, but a reconstruction. Elliott on Roads and Streets (3d Ed.) 577. The power of a city to improve its streets at the expense of abutting property is not exhausted by a single exercise of such power; but it is a continuing power, which may be exercised as often as necessity requires. City of Kokomo v. Mahon, 100 Ind. 242; Elliott on Roads and Streets, 460. that an act with an emergency clause approv- [6, 7] A construction of a statute by the Legislature, if clearly indicated by subsequent enactments, whether valid or not, will be given consideration by the courts. 36 Cyc. 1142. If, however, such subsequent expressions are not so clear and unequivocal as to leave the legislative construction free from doubt, it will be given little effect. State v. Lancashire & Co., 66 Ark. 466, 51 S. W. 633, 45 L. R. A. 348. [8-13] It may be that the Legislature of The power to improve highways, by drain- | 1913, in its attempt to so amend the act as to that the proposed improvement was less than three miles in length, and that it connected at each end with an improved road, or that it formed a connection between an improved highway and a township line, or the corporate limits of a city or town. By refusing to amend or plead further after the demurrer was sustained to their answer, appellants admitted the facts well pleaded in the complaint. The trial court had a right to treat the allegations of the complaint as true, and they will be so treated on appeal. The attention of this court is called to the fact that the petition does not allege that the Ruddick road, with which the proposed improvement connects at its eastern terminus, is an improved highway. The sufficiency of the petition was not questioned in the trial court, and it cannot be presented on appeal. Where the sufficiency of a pleading is not questioned until after final judgment, every reasonable presumption will be indulged in its favor, and if the defect could have been cured by amendment, such amendment will be deemed to have been made. [16] Appellant moved the court to amend and modify the judgment, so as to require that the question of making the proposed im clearly and expressly grant the power to reim- rendering judgment without requiring proof prove highways, acted on the assumption that such power was not conferred by the former statute, and that the Legislature of 1915 acted on the same assumption when it amended the act approved March 15, 1913, in such a way as to clearly confer the power to reconstruct highways under the provisions of the statute of which this section forms a part. It is equally probable, however, that these amendments were introduced and passed, not upon the supposition that the power in question was not conferred by the statutes formerly passed, but for the purpose of removing any doubt which might arise as to the existence of such power. Prior to the amendments mentioned the statute was open to construction in this respect, and it had not been construed by this court. The Legislature probably intended to make certain by express enactment what might otherwise be doubtful. Village of Morgan Park v. Knopf, 210 Ill. 453, 71 N. E. 340. However this may be, it must still be borne in mind that the meaning of a statute must be gathered from the language of the act, for that is the expression of the legislative will, and that the intention or will 'which the court seeks to ascertain and follow in construing an act is that of the Legislature which passed it, and not that of any subse-provement be submitted to an election of the quent Legislature. Bingham v. Board, etc., 8 Minn. 441 (Gil. 390). A Legislature may embody in an act passed a construction of its meaning, and such construction is binding on the courts, because the construction forms a part of the statute as enacted, and makes clear the intent of the Legislature which passed it; but the expression of the opinion of a subsequent Legislature as to the proper construction of a statute passed by a previous Legislature is of no judicial force. Taylor v. State, 168 Ind. 294, 80 N. E. 849; Frey v. Michie, 68 Mich. 323, 36 N. W. 184. It need MORRIS, C. J. (dissenting). I think the scarcely be said that the Legislature pos- circuit court erred in sustaining the demurrer sesses no judicial power, as this power is to appellant's answer. The petition for the vested exclusively in the courts of the state. reimprovement was filed under section 62 of The courts are charged finally with the re- the highway act of 1905, as amended by the sponsibility of construing doubtful statutes, act of March 15, 1913. Acts 1913, p. 914; and they should not be controlled in the dis- section 7711a, Burns 1914. Neither before charge of that important function by a legis- nor after the amendment of 1913 did said lative construction, which in their judgment section 62 contain express mention of the does not accord with the meaning expressed subject of rebuilding or reimprovement. By by the language of the act. Deutschman v. an act approved March 14, 1913, purporting Town of Charlestown, 40 Ind. 449; Bingham to amend said section 62 of the highway act v. Board, supra; Dash v. Van Kleeck, 7 of 1905 (Acts 1913, p. 690; section 7711a, Johns. (N. Y.) 477, 5 Am. Dec. 291; Ingalls v. Burns 1914), express provision was made Cole, 47 Me. 530; 26 Am. & Eng. Enc. 637; for rebuilding of improved highways, but this 36 Cyc. 1143. Boards of commissioners had act was held invalid in Metsker v. Whitsell power to order the reconstruction or reim- (1914) 181 Ind. 126, 103 N. E. 1078. Howprovement of highways under section 62 of ever, legislative intent may be shown by an the act of 1905 so long as it remained in invalid enactment. Board v. Baker (1916) force, and they were not deprived of this 111 N. E. 417. The purpose of judicial conpower by any subsequent statute or amend-struction of statutes is to ascertain the legisment. There was no error in sustaining the lative intent, and, when determined, such demurrer to appellants' answer. purpose must be given effect. voters of Jackson township. The court did [14, 15] The second assignment of error It often happens that Legislatures in questions the action of the trial court in amendatory or supplemental enactments at MORRIS, C. J., dissents. tempt to construe and declare the scope and [ same questions as were presented and decided meaning of previous enactments. Such con- in the case of Bettenbrock v. Miller (No. 22901) struction, as to past transactions, is not cision in that case the judgment in this is af112 N. E. 771, and on the authority of the debinding on the courts, but as to future ones firmed. may be controlling. Lewis' Sutherland Stat. Const. (2d Ed.) § 358; Dequindre v. Williams, 31 Ind. 444, 450; McCleary v. Babcock (1907) 169 Ind. 228, 238, 82 N. E. 453; State ex rel. v. Harrison (1888) 116 Ind. 300, 19 N. E. 146; Sedgwick, Stat. & Const. Laws, p. 252; Endlich, Int. Stat. § 365. Previous to 1913, section 62 of the highway act of 1905 was probably of doubtful meaning in regard to the question of rebuilding improved roads; but, in my opinion, when the Legislature of 1913, by said attempt to amend the section by its said act (invalid) approved March 14, 1913, made express provision for rebuilding, it thereby construed the existing law as forbidding such work. The amendment approved on the following day (March 15, 1913) and under which this petition was filed, omits, like the original section 62 adopted in 1905, any mention of rebuilding or reimprovement. Consequently we have here, not the mere interpretation of the words of the act of March 15, 1913, but the interpretation of the act in the light of the construction placed on the original section by the same General Assembly. I think the Legislature did in effect construe the law, and that such construction should govern here. On March 11, 1915, the Legislature again amended said section 62, by which reimprovement is authorized. Acts 1915, p. 680. When that amendment was made, the action here was pending in the court below, and because of the last proviso in the act it did not affect or apply to pending actions, and consequently this case must be considered as though the Legislature of 1915 had not acted on the subject. (185 Ind. 254) PUBLIC UTILITIES CO. v. HANDORF. * (No. 22699.) (Supreme Court of Indiana. May 22, 1916.) 1. STREET RAILROADS 110(1) COLLISION WITH FIRE APPARATUS AT STREET CROSSING. Complaint in an action by a city fireman against a street railway company for negligence in running into a fire truck, alleging a violation of a city ordinance in operating the car, held good on demurrer. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 224; Dec. Dig. ~110(1).] 2. NEGLIGENCE VIOLATION OF ORDI NANCES. 6 The question as to when a witness is qualified to give an expert opinion is in the discretion of the trial court, the exercise of which will not be disturbed unless an abuse of discretion is shown. [Ed. Note.-For other cases, see Appeal and For the reasons stated, I am constrained to Error, Cent. Dig. § 3852; Dec. Dig. 971(2); dissent from the majority opinion. Evidence, Cent. Dig. § 2363; Dec. Dig. 546.] (185 Ind. 716) BETTENBROCK et al. v. HARPER et al.* (No. 22902.) (Supreme Court of Indiana. May 12, 1916.) Appeal from Circuit Court, Jackson County; John H. Edwards, Special Judge. Petition by Henry Harper and others for highway improvement; John A. Bettenbrock and others appearing and answering. From a judgment after demurrer was sustained to their answer, defendants appeal. Affirmed. Montgomery & Montgomery, of Seymour, for appellants. E. P. Elsner, of Seymour, and Kochenour & Prince, of Brownstown, for appellees. COX, J. Appellee Harper and 362 other qualified petitioners instituted a proceeding under section 62 of the Highways Act of 1905 (section 7712, Burns 1908), as amended in 1913 (section 7711a, Burns 1914), for the pavement with concrete of an existing free gravel road less than three miles in length. Such proceedings were had below as to present in this appeal the 6. EVIDENCE ~553(2)-OPINION EVIDENCEHYPOTHETICAL QUESTION. The opinion of an expert in answer to a hypothetical question should be based on facts which the evidence in the case tends to prove. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2370; Dec. Dig. ←➡553(2).] 7. EVIDENCE 553(2)-OPINION EVIDENCEHYPOTHETICAL QUESTION. Where there is evidence tending to prove facts directly or by logical inference, the court may permit an expert to give an opinion on the state of facts as shown by the evidence introduced. [Ed. Note. For other cases. see Evidence, Cent. Dig. § 2370; Dec. Dig. 553(2).] 8. EVIDENCE 571(1)-HYPOTHETICAL FACTS -JURY QUESTION. Whether facts as stated in a hypothetical question have been established by a fair preponderance of the evidence is for the jury in determining what weight will be given testimony of the expert. [Ed. Note. For other cases, see Evidence. Cent. Dig. § 2395; Dec. Dig. 571(1).} For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. 9. TRIAL 233(1) — INSTRUCTIONS—OMIS- | 17. APPEAL AND ERROR 1003—SUFFICIEN An instruction must be construed in connection with all the other instructions, and if, when taken as a whole, they correctly state the law, they are sufficient. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 705-707; Dec. Dig. 296(1).] 11. STREET RAILROADS 118(15)—COLLISION WITH FIRE TRUCK ON CROSSING LAST CHANCE RULE. In an action by a city fireman against a street car company for injuries received in a collision between fire apparatus and defendant's car, the evidence held to present the issue of last clear chance. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. 118(15).] 12. STREET RAILROADS 117(3)-COLLISIONS -JURY QUESTION. Under evidence tending to show that street car which injured plaintiff in a collision was defective, submission of the issue to the jury held proper, however slight the evidence presenting the question. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 241, 242, 251, 252; Dec. Dig. 117(3).] 13. TRIAL 193(3)-INSTRUCTIONS ING PROVINCE OF JURY. - INVAD In an action for injuries alleged to be due to negligence of defendant street railroad, an instruction outlining the allegations of the complaint held not bad as telling the jury that defendant's negligence was the proximate cause of the injury. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 438; Dec. Dig. 193(3); Street Railroads, Cent. Dig. § 259.] CY OF EVIDENCE IN SUPPORT OF VERDICT. Where every material allegation of the complaint is supported by some evidence, the court upon appeal cannot weigh it to determine its preponderance. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. 1003.] 18. DAMAGES 132(1)-PERSONAL INJURIES -EXCESSIVENESS-AMOUNT. A verdict of $10,000 held not excessive under evidence tending to show that plaintiff's right jaw was broken, his lower jaw dislocated and paralyzed, his body and limbs bruised and injured, resulting in loss of speech, his face disfigured and distorted, and himself made a nervous and physical wreck. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 372; Dec. Dig. 132(1).] 19. APPEAL AND ERROR 1004(1)—REVIEW— AMOUNT OF VERDICT. The extent of injuries is a jury question and the verdict will not be disturbed unless it is apparent that the jury acted from an improper motive or was improperly influenced, or based their verdict on improper elements. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 3944, 3946; Dec. Dig. 1004(1).] Appeal from Circuit Court, Warrich County; Elbert M. Swan, Special Judge. Action by Lee Handorf against the Public Utilities Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed. Robinson & Stilwell, of Evansville, and Kiper & Fulling, of Boonville, for appellant. Edgar Durre and C. T. Curry, both of Evansville, and Caleb J. Lindsay, of Boonville, for appellee. ERWIN, J. This appeal is prosecuted from a judgment of $10,000 in favor of ap 14. TRIAL 234(-)-INSTRUCTIONS-INVAD- pellee for personal injuries sustained by him ING PROVINCE OF JURY. An instruction to find for the plaintiff if every material allegation of the complaint is sustained by a preponderance of the evidence, including one or more of the acts of negligence charged, unless contributory negligence of plaintiff is established, held not bad as directing a verdict for plaintiff. [Ed. Note. For other cases, see Trial, Dec. Dig. 234(4).] 15. TRIAL PROMINENCE. by reason of coming in contact with a street car of appellant. Appellant is a corporation operating a line of cars in the city of Evansville. Appellee was a fireman in the employ of the city of Evansville. The assignment here presents two alleged errors, viz.: (1) The error of the court in overruling the demurrer to the complaint; 244(4)-INSTRUCTIONS-UNDUE (2) and in overruling the motion for a new trial. Instructions as to the duty of a motorman and the degree of care required of him in apThe complaint is in one paragraph, and proaching a crossing, although in a measure rep- alleges, in substance, that appellant on Janetition, held not to so unduly emphasize the mat-uary 12, 1913, was engaged in operating ter as to place improper importance thereon. [Ed. Note.-For other cases, see Trial, Cent. Dig. 579; Dec. Dig. 244(4).] 16. APPEAL AND ERROR 1033(5) LESS ERROR-INSTRUCTION. HARM Street cars on Second avenue, in the city of Evansville, cars propelled by electricity; that on said date there was in force in said city an ordinance permitting fire apparatus to be An instruction that fire apparatus had no hauled through said city without any limit superior right over street cars under a city ordi- as to speed, and providing that the drivers nance held not prejudicial to defendant as calling attention to the ordinance without explain- of all other vehicles give the right of way to ing it, where such instruction was unduly fa- such fire apparatus; that there was also in vorable to defendant, in that the ordinance ex- force in said city an ordinance regulating pressly gave such fire apparatus right of way the speed of electric cars and limiting them Over all vehicles. [Ed. Note.-For other cases, see Appeal and to 8 miles an hour in the thickly settled Error. Cent. Dig. § 4056; Dec. Dig. streets and to 15 miles per hour over any 1033(5).] street; that there was on said date an ordi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes nance in force requiring cars operated by said car were burning brightly, thereby sigelectricity to be first class and the equip-nifying that there was a fire in said city, ment to be strictly first class; that it had and that the car which injured appellee had been the custom for many years in said city passed the same; that notwithstanding said and it was the duty of the operators of all signals and knowledge of the same on the cars running over the streets to run the same part of the servants of appellant, they unslowly and carefully and keep the same un- lawfully, negligently, and recklessly ran the der control at the approach of all street in-car at a high and dangerous rate of speed tersection whenever a fire alarm was sound-along said street and across said interseced, and for the purpose of apprizing the option and in excess of the speed limit of said erators of such street cars there was an city, and failed to keep the car under conalarm of fire and danger of collision with trol so as to avoid collision with said fire fire apparatus at street intersections electric apparatus so crossing said street; that said globes were installed at various points along servants in charge of the car by the exercise said street car track, which globes lighted of ordinary care and prudence could have automatically when an alarm of fire was seen the approach of the fire apparatus upon turned in. The complaint further alleges which plaintiff (appellee) was riding in amthat on said 12th day of January, 1913, ple time to have stopped the car and avoidappellant unlawfully and negligently oper-ed the collision, but negligently failed to do ated a defectively equipped and second-class so; that said injuries were caused solely by electric car through, in, and along Second reason of the negligence of defendants and avenue, which street was a thickly settled their servants. Then follows a prayer for street, at a high and dangerous rate of speed, relief. and in excess of the speed limit as fixed by The specifications of the demurrer are that the ordinance of said city, and without the complaint was insufficient for the reasounding a bell or otherwise giving, any son that it did not show the violation of any warning of its approach, thereby injuring duty on the part of appellants towards applaintiff in the manner thereinafter describ- pellee; that it did not show any negligence ed; that on said date, and for many years on the part of appellant; that it did not prior thereto, appellee was in the employ of show that any negligence of appellant was a the city as fireman, and was riding on a hook proximate cause of the injury complained of; and ladder truck on his way to a fire; that that the complaint failed to show any negliin order to reach the fire it was necessary for gence of appellant in the operation of the said apparatus to cross Second avenue, on car at the time of the alleged injury; that which appellant's cars were being operated; the complaint failed to show that appellant that while said hook and ladder truck was was at the time and place in question operin the act of crossing said street on Frank- ating the car at a rate of speed in violation lin street, in a thickly populated portion of of any ordinance of the city regulating the the city, appellant's servants negligently and speed of cars; that the complaint showed unlawfully and in violation of said ordinance upon its face that appellee was guilty of conand custom aforesaid, ran and propelled a tributory negligence; that it showed plainsecond-class, inefficiently equipped car, the tiff guilty of negligence which proximately property of appellant, upon and against said contributed to his injury; that the complaint fire apparatus upon which appellee was rid- failed to show that at the time and place of ing, overturning the same and pinioning ap- the alleged injury appellee took any precaupellee underneath it, breaking appellee's jaw tions to avoid the collision or prevent the acon the right of his face, and dislocating the cident; that the complaint showed upon its lower jaw on the left side, knocking out ap- face that appellee could have avoided the acpellee's molar teeth, and injuring and bruis- cident by the exercise of ordinary care as ing his body and limbs, which resulted in the wagon on which he was riding approachloss of speech; that by reason of his injuries ed the track; that the complaint shows that and suffering therefrom he has become a the accident resulted wholly from the negnervous and physical wreck; that his mem-ligence of the driver of the wagon. This deory has been impaired; that by reason of his injuries he was confined to the hospital for a number of weeks and required medical attention for a long time, and will require medical attention for a number of years to come; that his face has been disfigured and distorted, and the lower jaw dead, dumb, and paralyzed; that the servants of appellant were in the line of their employment, and knew, and by the exercise of ordinary care could have known, that there was a fire in said city and that there was danger of said car colliding at the intersection of said streets with the fire apparatus; that at the time the automatic red lights stationed along murrer was overruled. [1] We are of the opinion that the complaint is not subject to the infirmities claimed by appellant. It shows appellee in the discharge of a duty and in a place where he had a lawful right to be; that appellant was at the time of the accident violating a city ordinance as to the speed of the car; that appellant's servants were violating a duty in not stopping its car when it had notice by reason of the red lights burning along its track that a fire was somewhere in the city; that the ordinance provided that the drivers of all other vehicles on the streets were compelled to give the right of way to the fire |