Lahr v. Ulmer. only to show the judgment of a competent court, an execution warranted by the judgment, and a sale and deed under it." Rorer on Judicial Sales, at $809, recognizes the rule as ordinarily correct. See, also, Indianapolis, etc., R. Co. v. Center Tp., 143 Ind. 63, at p. 69, and authorities cited. In the case before us, the evidence shows a judgment against the execution defendant by a competent court, an execution warranted by the judgment, and a sale and deed under it. If the trial court erred in overruling appellant's motion for a new trial the judgment should be reversed notwithstanding the fact that the sheriff did not demand property before the sale, and that there is an absence of evidence affirmatively showing a levy by that officer. He Counsel for appellee, as bearing on the justice of the case, refer to the fact that appellee Ulmer was a resident householder and as such entitled to exemption, and that he was not afforded an opportunity to claim this exemption. was charged with the knowledge that there was a judgment against him which was a lien against his real estate and upon which the plaintiff was entitled to have issued an execution. His property was advertised for sale to satisfy said execution. Of this he was required to take notice. The right to exemption is a personal privilege to be exercised. It has been held that right of exemption is lost although the defendant never knew that his property had been levied upon. Freeman on Executions, §212; Bell v. Davis, 42 Ala. 460. There may be circumstances under which a judgment debtor who fails to claim his exemption should be held not to have waived his right; but the facts in the case at bar do not warrant such a holding. The solution of the controlling question presented by the appeal depends upon the construction we give to $2642 Burns 1894. It reads as follows: "If a wife die testate or intestate leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage: Provided, Lahr v. Ulmer. If the wife shall have left a will, such widower may elect to take under the will, instead of this or any other law of descents of the State of Indiana, which election shall be made within ninety days after said will has been admitted to probate in this State and in the same manner as widows are now required to elect in such cases." Under $2485 R. S. 1881, a widower took one-third of his deceased wife's real estate absolutely subject to its proportion of her debts contracted before marriage. By $2505 R. S. 1881, if provisions were made for a woman by the will of her husband in lieu of her right to lands of her husband she was required to elect whether she would take under the provision so made or whether she would retain the right to one-third of the lands of her husband, but the time and manner in which she should make the election were not designated. By an act approved April 13, 1885 (Acts 1885, p. 239), §41 of an act regulating descents, approved May 14, 1852, (being §2505, supra), was amended so as to provide the manner and time of making such election. Acts 1885, pp. 239, 240. §2666 Burns 1894. By an act approved March 4, 1891 (Acts 1891, p. 71), $2485 R. S. 1881, supra, was amended by adding thereto the proviso which appears in §2642 Burns 1894, Under the law as it existed prior to the amendment of March 4, 1891, the husband became seized immediately upon the death of his wife of an undivided one-third part of the real estate of which she died seized. Under the law as it existed at the death of his wife, appellee John Ulmer took the same interest unless he elected within ninety days after the probate of the will to accept of its provisions. To defeat the operation of the law, an affirmative act upon his part within the time named making the proviso effective was necessary. The right to elect is statutory, and it must be exercised substantially in compliance with the statute. Fosher v. Guilliams, 120 Ind. 172, and authorities there. cited. $2642, supra, differs from §2666, supra, in this,— supra. VOL. 27-8 Chicago, etc., R. Co. v. Ferguson. in the one the widower takes under the law unless he elects to take under the will; in the other, unless the widow make an election, she takes under the will. The concluding portion of $2642, supra, "which election shall be made * * * in the same manner as widows are now required to elect in such cases" applies only to the manner of making the election, viz., in writing, signed by the husband, acknowledged before some officer authorized to take acknowledgments of deeds. Appellee not having made an election to take under the will of his wife, the court erred in overruling appellant's motion for a new trial. Judgment reversed, with instruction to sustain said motion. THE CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILWAY COMPANY V. FERGUSON, ADMINISTRATRIX. [No. 3,428. Filed March 28, 1901. Rehearing denied June 19, 1901.] TRIAL.-Verdict.-Interrogatories.-The general verdict will not be controlled by answers to interrogatories unless they irreconcilably conflict therewith. p. 116. SAME.-Finding.—Personal Injury.—Proximate Cause.—In an action against a railroad company for the death of a brakeman, caused by the derailment of the train, findings of the jury that the breaking of the flange on a wheel of the car was the proximate cause of the wreck is not inconsistent with another finding that the proximate cause thereof was the high rate of speed at the point of derailment. pp. 116-118. SAME.-Inconsistent Findings.-A finding by the jury in an action against a railroad company for injury to a brakeman resulting from the derailment of a train, that the track was not defective where the flange of a car wheel broke is not inconsistent with a finding that the flange was broken because of a rough and uneven track and the high rate of speed of the train, since the wheel may have been damaged by the rough and uneven track and the break completed after it had passed the rougher portion of the track. p. 118 SAME. Inconsistent Findings.- Master and Servant.-In an action against a railroad company for the death of a brakeman caused by the derailment of the train which was being run at a rapid rate of speed, a finding that the train was being run at such high rate of Chicago, etc., R. Co. v. Ferguson. speed without any orders or directions to the men on the train from any officer or agent of the road does not show that decedent was responsible for the speed of the train, where it was shown that the train was in charge of a conductor and engineer. p. 119. MASTER AND SERVANT.-Fellow Servant.-Railroads.-Where in an action against a railroad company for the death of a brakeman it was charged that the combined defective condition of the railroad track, the defective material of a wheel, the failure to inspect and the high rate of speed with heavily loaded cars resulted in breaking the flange of a wheel, the derailment of the train and the death of decedent, the defendant was liable, under $7083 Burns 1894, although it be conceded that the negligent operation of the train was the act of the engineer or conductor as fellow servants. pp. 119, 120. From Lawrence Circuit Court; W. H. Martin, Judge. Action by Minnie Ferguson, administratrix, against the Chicago, Indianapolis and Louisville Railway Company for the death of intestate. From a judgment for plaintiff, defendant appeals. Affirmed. E. C. Field and W. S. Kinnan, for appellant: S. B. Lowe, T. J. Brooks and W. F. Brooks, for appellee. COMSTOCK, J.-The decedent at the time of his death was and for four months prior thereto had been a brakeman in the employ of appellant company. His death was occasioned by the derailment of a train upon which he was acting as such employe. It is alleged that one of the causes of the derailment was the breaking of the flange on a wheel of one of the cars. The complaint is lengthy, but among other acts of negligence it is alleged that the road-bed was not maintained in proper repair at the place where the flange was broken and at the place where the car was derailed, and that the track was generally maintained in an unsafe condition as to the road-bed and rails; that the car that was first derailed was old, having been rebuilt by the appellant at its own shops in 1898; that said wheel was worn and cracked and defective, the defects of which were obscured and hidden from ordinary observation, but would have been discovered by reasonable inspection; that appellant had neg Chicago, etc., R. Co. v. Ferguson. ligently failed to supply inspectors, or to cause inspection to be made; that decedent had no knowledge of such failure to inspect, or of the defects in said wheel; that he was not a judge of wheels and cars and could not inspect the same had he tried; that it was not his duty to inspect, and he did not; that the cars were overloaded for the kind of track the train was being run over and the speed it was running; that the train was running at a high and reckless rate of speed, and that it was not in the power of the decedent to control the dangerous rate of speed; that an inspection would have discovered the defects of the wheel and have avoided the accident. It is averred that the derailment was caused by the negligence above set out and the running of the train at a high and dangerous rate of speed over a defective track. The cause was put at issue by general denial and the trial resulted in a general verdict and judgment thereon for appellee in the sum of $2,500. The jury with their general verdict returned answers to interrogatories. The only error assigned upon this appeal is the action of the court in overruling appellant's motion for judgment on the special findings, notwithstanding the general verdict. The general verdict finds to be true all the material averments of the complaint necessary to recovery. It finds that the death of the decedent was occasioned by the negligence. of appellant and that the decedent was himself free from fault contributing to his death. The general verdict will not be controlled by answers to interrogatories unless they irreconcilably conflict therewith. Rhodius v. Johnson, 24 Ind. App. 401; Sponhaur v. Malloy, 21 Ind. App. 287, and authorities cited. At the request of defendant the court submitted interrogatories to the jury. The following is a fair summary of the pertinent facts specially found. The immediate and proximate cause of the derailment of the coal car on which the deceased Ferguson was riding was the breaking of the flange on one of the car wheels of the train. Such derailment |