This court has recognized that the distinction between ultimate facts and conclusions of law is not always clear. See Oliver v. Coffman (1942), 112 Ind. App. 507, 45 N.E.2d 351. However, in Guevara v. Inland Steel Co. (1951), 121 Ind. App. 390, at pages 396-97, 95 N.E.2d 714, the following analysis was made:
The court there quoted this from 38 Am.Jur., Negligence, section 262, page 954: "Where, from the nature of the case, the plaintiff in an action for damages for negligence could not be expected to know the exact cause of the precise negligent act which became the cause of an injury, and the facts were peculiarly within the knowledge of the defendant, the plaintiff is not required to allege the particular cause; it is sufficient to allege the facts in a general way, which will give the defendant notice of the character of proof that would be offered to support the plaintiff's case." In Oliver v. Coffman, 112 Ind. App. 507, 45 N.E.2d 351, 354, the court says: "An averment that a thing was negligently, or carelessly, or recklessly, or wilfully, or wantonly, or intentionally done is considered an averment of an ultimate fact. (citations)." In Miller v. Pacific Constructors, 68 Cal.App.2d 529, 157 P.2d 57, plaintiff, an inspector for Bureau of Reclamation, alleged he received personal injuries when he sought to enter a gallery through a negligently secured bulkhead which gave way, causing him to fall.
In the absence of such a showing appellant's contention must fail. Oliver v. Coffman (1942), 112 Ind. App. 507, 45 N.E.2d 351; Drewrys Limited U.S.A., Inc. v. Crippen (1942), 113 Ind. App. 120, 44 N.E.2d 1006. To support its contention that the negligence claimed to be shown by these interrogatories and answers was imputable to the appellee, the appellant relies upon Interrogatory No. 13 2. and the jury's answer thereto, which are in words as follows:
"The court has broad discretion in determining what matters should or should not be stricken." In Oliver v. Coffman (1942), 112 Ind. App. 507, 515, 45 N.E.2d 351, the late Judge Bedwell of this court stated: "Error on appeal cannot be predicated upon the action of a trial court in overruling a motion to [5] strike out a part or all of a pleading.
R. Co. v. Leopold, Adm'r. (1920), 73 Ind. App. 309, 311, 127 N.E. 298. Answers to interrogatories establishing such contributory negligence should also establish that such negligence contributed to his injuries in order to overthrow a general verdict. Oliver v. Coffman (1942), 112 Ind. App. 507, 520, 45 N.E.2d 351. The contributory negligence must also be the proximate cause of the injuries or death sued for.
nt to withstand demurrers, appellees offer consideration of Humphrey v. Mottier (1911), 48 Ind. App. 469, 96 N.E. 38, therein an allegation using "unsound mind" to define the status of an action under a statute using the words "unsound mind" was deemed sufficient; also, of The Pittsburgh, Cincinnati, and St. Louis R.R. Co. v. Brown (1873), 44 Ind. 409, and The Indianapolis, etc., R.W. Co. v. Lyon (1874), 48 Ind. 119, the court held that a statement that the right-of-way was not "securely fenced in" is sufficient in relation to defining the rights of the parties wherein the statute required the right-of-way to be "securely fenced in:" in Pittsburgh, etc., R. Co. v. Newsom (1905), 35 Ind. App. 299, 303, 74 N.E. 21; Blanchard-Hamilton Furniture Co. v. Colvin (1904), 32 Ind. App. 398, 69 N.E. 1032, and C.C.C. St. L. Ry. Co. v. Gillespie (1933), 96 Ind. App. 535, 173 N.E. 708, the court holds that pleading the duty incorporated by statute in the words of the statute itself is proper. In Oliver v. Coffman (1942), 112 Ind. App. 507, 514, 45 N.E.2d 351, Judge Bedwell discusses the characteristics setting up the distinction among pleadings of conclusions of law, conclusions of the fact and ultimate facts in this paragraph as follows: "The line of demarcation between `ultimate facts' or `conclusions of fact,' and `conclusions of law,' is quite often shadowy and indistinct, and it is difficult, if not impossible, to formulate a definition that will distinguish a conclusion of law from a conclusion of fact or from an ultimate fact.
Appellee charges that the complaint is made up of conclusions of law We will not pass on that charge because of the result reached and since it is true that "the line of demarcation between `ultimate facts' or `conclusions of fact' and `conclusions of law' is quite often shadowy and indistinct." Oliver v. Coffman (1942), 112 Ind. App. 507, 514, 45 N.E.2d 351. The complaint charges and appellant has assigned and argued that the will creates a trust for the maintenance and repair of a mausoleum; that there is no way of ascertaining the beneficiaries capable of enforcing such trust; that the purpose of such trust is capricious and wasteful; that the corpus of such trust may not vest sooner than 21 years after the death of Owen T. McCarty; that trustee's powers are too broad and indefinite and no length of time is set for the trustee to erect the mausoleum and that the erection of a mausoleum without funds for maintenance cannot be legally done and if done would constitute a common law nuisance.
And this type of interrogatory has been held improper. In Oliver v. Coffman, 112 Ind. App. 507, 45 N.E.2d 351, the court said of a similar interrogatory: "Under the rule that all intendments, inferences, and presumptions, which may be drawn from any evidence admissible under the pleadings, support the general verdict, a general verdict for the plaintiff in a negligence action would not be overthrown by answers to interrogatories, that established negligence on the part of the plaintiff, unless such answers also established that negligence contributed to the injuries for which plaintiff sought to recover."
It has been said that an ultimate fact is the final or resultant fact that has been reached by the process of logical reasoning from the detail of probative fact. 41 American Jurisprudence, Pleading ยง 7, p. 292; Oliver v. Coffman (1942), 112 Ind. App. 507, 45 N.E.2d 351. Ultimate facts are determined as a result of an inferential process; the evidentiary facts are the premises and the ultimate facts the conclusions.
We cannot say that the evidence, without conflict, compels the conclusion that any negligence on the part of the deceased proximately contributed to his death. Beckstein v. Sayler, Admr. (1931), 93 Ind. App. 686, 179 N.E. 581; Oliver v. Coffman (1942), 112 Ind. App. 507, 45 N.E.2d 351; Teegarden v. Brown, Admx. (1942), 111 Ind. App. 159, 39 N.E.2d 793, with cases cited. Appellants argue that the giving of certain instructions was error.