might have been repaired before the accident; whether the appellee had knowledge of the defect before the accident; whether he was injured without fault on his part,were questions of fact, all of which were found by the jury in favor of the appellee. It is insisted by counsel for the appellant that the answers of the jury to the questions of fact indicate that the appellant, Johnson, was merely the manager of the business of the Indianapolis Excelsior Manufacturing Company, or the owner of its stock. We fail to find anything in the answers to sustain this proposition. The complaint alleged that Johnson was the proprietor of the business carried on at the works of the company, and that he was also the manager of that business. It further stated that the plaintiff was employed by the defendant. As the evidence is not in the record, it is impossible for us to say what proof was made concerning the connection of the appellant, Johnson, with the works of the Indianapolis Excelsior Manufacturing Company, the nature or extent of his control of the business, or out of what arrangement with that company his liability for the injury to the plaintiff may have arisen. It was possible that he should operate the works at his own expense, for his own profit, and at his own risk, and that he should assume the responsibility for injuries to employés. Nothing in the answers to interrogatories excludes the possibility that such proof was made. The averments of the complaint touching Johnson's relation to the business were ambiguous and indefinite, but they were sufficient, as we think, to admit evidence of the fact that Johnson was operating them on his own account, and not as the representative of the corporation. Many of the answers of the jury to interrogatories tend to sustain the theory of the appellant that the accident happened in such a way and from such a cause that the appellant was not legally responsible for it. But the jury had that theory before them, as well as the theory of the appellee. It was directly brought to their attention by very pointed instructions of the court. They rejected it, and adopted the contrary theory. We cannot say that they erred in this. No answer to any interrogatory is of such a nature that it necessarily and inevitably overthrows the general verdict. While those answers which are particularly discussed by counsel for appellant furnish material for a strong argument in support of appellant's views of the case, they are not of such controlling character as to justify the court in setting aside the general verdict. The rules by which we are governed in determining this question are clearly stated in Stone Co. v. Summit, 152 Ind. 297, 300, 301, 53 N. E. 235, 237: "The general verdict necessarily determines all material issues in favor of appellee, and, unless the answers of the jury to the interrogatories are in ir econ cilable conflict with the general verdict, the court did not err in overruling appellants' motion for a judgment in their favor. If such irreconcilable conflict exists, then the court erred in overruling said motion. Railway Co. v. Trowbridge, 126 Ind. 391, 393, 394, 26 N. E. 64, and cases cited; Town of Poseyville v. Lewis, 126 Ind. 80, 25 N. E. 593, and cases cited; Rogers v. Leyden, 127 Ind. 50, 59, 26 N. E. 210, and cases cited; Graham v. Payne, 122 Ind. 403, 408, 409, 24 N. E. 216; Railroad Co. v. Lewis, 119 Ind. 218, 223, 21 N. E. 660. The answers to the interrogatories cannot be aided by any presumptions, for the rule is that all reasonable presumptions will be indulged in favor of the general verdict, and none will be indulged in favor of the answers to the interrogatories. Town of Poseyville v. Lewis, 126 Ind. 80, 25 N. E. 593; Railway Co. v. Trowbridge, 126 Ind. 391, 394, 26 N. E. 64. The special findings override the general verdict only when both cannot stand; the conflict being such, upon the face of the record, as to be beyond the possibility of being removed by any evidence admissible under the issues in the cause. Amidon v. Gaff, 24 Ind. 128; Railroad Co. v. Lewis, 119 Ind. 223, 21 N. E. 660." See, also, McCoy v. Light Co. (Ind. Sup.) 64 N. E. 92, at the present term. We find no error, therefore, in the refusal of the court to render judgment for the appellant upon the answers to the interrogatories. Under the assignment that the court erred in overruling the motion for a new trial various questions as to the correctness of instructions given or refused are properly presented. The objection taken to the sixth instruction is that in its enumeration of the facts essential to a recovery, which the plaintiff must prove, it omits the element of want of knowledge by the plaintiff of the defect in the machine which caused the injury. The instruction, however, does not seem to be wanting in this particular. It was as follows: "(6) Before the plaintiff can recover in this action, he must establish three things by a fair preponderance of the evidence: First, that he received injuries as alleged in the complaint; second, that the injuries complained of were the immediate and proximate result of the defendant's carelessness and negligence, as alleged in the complaint; third, that the plaintiff was free from any carelessness or negligence proximately contributing to such injuries." By this instruction the jury were told that the plaintiff must prove "that he received injuries as stated in the complaint." It was stated in the complaint that the plaintiff had no knowledge of the defective condition of the machine, and that he was injured while working with it. If he was injured with knowledge of the dangerous condition of the machine, then he did not receive the injuries as stated in the complaint. The instruction was not as full and plain upon the fact of knowledge as it might have been, but, if thought objectionable on that account, the state of facts not alleged in the complaint, and no authorities need be cited to show that such an instruction was erroneous." The averment of the complaint on the subject of notice is that "defendant had knowledge that said blade and attachments were out of repair, and defective and dangerous, rule of law contended for by the appellant could have been stated more fully by a further instruction tendered by the defendant. Besides, by several other instructions, and especially by the seventeenth, the jury were informed that they could not return a verdict for the plaintiff unless they found that he "did not know of such dangerous and defec-and had such knowledge long enough to repair tive condition of said machine, and could not, by the exercise of reasonable care and diligence while operating said machine, in the usual and ordinary manner, have discovered said defective and dangerous condition." The instruction stated no false or erroneous principle of law. It is impeached only on the ground that it did not go far enough. This being so, its omissions could be, and appear to have been, sufficiently supplied by the seventeenth instruction. Instruction No. 8 is complained of for the reason that it told the jury "that it is the absolute duty of the employer to provide his employé with reasonably safe appliances and machines with which to do his work, when it should have said that the employer should exercise reasonable care to provide such machinery." But the instruction expressly states that, "if an employé sustains injury in consequence of the failure or neglect of an employer to use reasonable care and diligence" to discharge the duty of providing safe machinery, and keeping it in repair, then the employé, if injured without his fault, etc., would be entitled to recover. Neither is the instruction objectionable because it fails to point out the distinction between contributory negligence and assumption of risk. This instruction did not relate to that subject. Other instructions made that distinction clear. The tenth instruction stated certain conditions under which a plaintiff could not recover for a personal injury. The fact that it did not state other conditions under which no recovery could be had did not render it objectionable. The twelfth instruction is assailed upon the ground that it was not authorized by the allegations of the complaint, and for that reason was misleading, and gave the jury a wider latitude than was permissible under those allegations. The objection is thus stated: "This is an instruction in which the theory of the plaintiff's case is again stated. At the top of page 41, in summarizing the complaint, the court tells the jury that it is alleged that the defendant knew, or ought to have known, of the defective condition of the machine. The latter part of this statement is untrue. The allegations of the complaint is that the defendant knew of the defective condition. There is no suggestion in it that he ought to have known. In other words, it is a complaint charging actual knowledge, and not constructive knowledge. By this instruction the jury were told that the complaint was that the defendant ought to have known of the defective condition of the machine. the same in the exercise of reasonable care." An allegation of knowledge or notice includes not only actual knowledge or notice, but implied or constructive notice; and proof either of actual knowledge, or that the defendant, by the exercise of ordinary care, might have obtained such knowledge, is admissible under the general allegation of knowledge or notice. In view of the authorities, the averment that the defendant might have obtained knowledge of the situation by the exercise of reasonable or ordinary care seems unnecessary. Stone Co. v. Summit, 152 Ind. 297, 300, 53 N. E. 235; Railroad Co. v. Dual, 134 Ind. 156, 160, 33 N. E. 355; Hunt v. City of Dubuque (Iowa) 65 N. W. 319; City of Ft. Wayne v. Patterson, 3 Ind. App. 34, 29 N. E. 167. The instruction did not go beyond the complaint, nor authorize the jury to consider any evidence not properly admissible under its allegations. The question of the correctness of the refusal of the court to give the eighth instruction asked for by the defendant cannot be considered, for the reason that it relates to the evidence in the case, and this, as we have seen, is not in the record. Finding no error, the judgment is affirmed. 1. Burns' Rev. St. 1901, § 5153, subd. 5, provides that a railroad company may construct its road across a highway only on condition that it restore such highway "to its former state," or place it in such condition "as not to unneces sarily impair its usefulness," and that such. road shall be constructed across the highway "so as not to interfere with the free use of the same." Section 5172a provides that a railroad company whose road crosses any public street in any incorporated city shall grade its road at such street crossing in accordance with the grade of the street, so as to afford security for life and property. A railroad intersected three streets of a city on a grade higher than that of the streets. Such elevation was a serious obstruction to the heavy travel on such streets, and rendered it dangerous, and subjected the city to danger of damage suits, for which it would have no recourse, owing to the insolvency of the company. Held, that the facts furnished grounds for an action by such city to compel by mandamus the lowering of the railroad grade. 2. It is not error to refuse a motion to modify special findings of fact, the proper remedy being a motion for a new trial. 3. Conclusions of law on special findings of It authorized a recovery upon a fact were filed on December 15th. On De cember 21st exceptions were taken to each conclusion of law. Held, that the exceptions, not being taken when the conclusions were filed, came too late. 4. A judgment in conformity with the conclusions of law is not subject to modification by motion on account of. the alleged erroneous character of such conclusions, the proper remedy being exceptions to each of the conclusions. Appeal from circuit court, Tipton county; W. W. Mount, Judge. Mandamus by the state of Indiana, on the relation of the city of Noblesville, against the Chicago & Southeastern Railway Company, to compel respondent to lower its grade at street crossings. From a judgment ordering such peremptory writ, defendant appeals. Affirmed. W. R. Crawford, W. C. Stover, and Oglebay & Oglebay, for appellant. Christian, Christian & Cloe, for appellee. MONKS, J. The relator brought this action to compel appellant by writ of mandamus to lower its tracks so as to conform to the grade of the streets crossing the same. The cause was tried by the court, a special finding of facts made, conclusions of law stated thereon in favor of appellee, and a peremptory writ ordered requiring appellant to lower its tracks to conform to the grade of said streets. The errors assigned and not waived are: "(1) The court erred in overruling appellant's demurrer to the alternative writ. (2) The court erred in overruling appellant's motion to amend the special findings: (3) The court erred in its conclusions of law." The court erred in overruling appellant's motion to change and modify the judgment." “(5) It is alleged in the alternative writ: That appellant's "line of railway passes through the city of Noblesville on and along Vine street of said city, which extends east and west through said city, and intersects Ninth, Tenth, and Eleventh streets, which last-named streets run north and south through said city. That each of said streets, before the construction of said railway, and since, and now are public streets of said city, in constan use by the inhabitants of said city and the public generally for travel. That said streets running north and south are the principal streets of said city running north and south, and are now improved as hereinafter stated, and are necessary to said city and the public generally, and that the same are constantly traveled by persons on foot, by vehicles, and loaded wagons drawn by horses; and that said streets are intersected by said line of railway at right angles; and that in traveling upon each of said streets the traveler is compelled to cross over said railroad coming or going from the public square, the business portion of said city, to and from the south part of said city; and that in each day hundreds of persons and loaded wagons and vehicles drawn by horses have to cross said 4. See Judgment, vol. 30, Cent. Dig. §§ 594, 595. railroad at the intersections of said streets. That said Ninth street has been graded and improved, both the roadway and the walks, the roadway being paved with brick and the walks with cement, north and south of said line of railway; and said Tenth street has been graded and improved with gravel and with brick walks north and south of said railway, each of which improvements were made at thousands of dollars cost to said city and the property owners abutting thereon; and that said defendant company and its predecessors have constructed and is now operating its said line of railroad upon and along Vine street, and has laid and maintained its main track of railroad upon and along said street, and has constructed and now maintains side tracks and switches on and along said Vine street; and that said defendant or its predecessors in the original construction of said main track and said side tracks and switches elevated its said tracks by grading up the surface of said street, thereby producing an obstruction to the free use of said street, and especially at the intersections of said streets hereinbefore mentioned which run north and south through said city; and that by the improvements made on said streets aforesaid said elevation of said tracks of said defendant company became still higher, so that now, and ever since said railroad was constructed, said elevation or grade of said defendant's roadbed and tracks thereon have been a continuous obstruction to the free use of Ninth, Tenth, and Eleventh streets at the points of intersection of said railroad on said Vine street, and has and does now render the use thereof dangerous to travelers, and subjects said city to constant danger of suits for damages for any accident that may happen to said travelers in crossing said railroad; and that said city would have no recourse on said defendant company in the event it was mulched in damages on the account that said defendant company has no property subject to execution, and is wholly insolvent. And said relatrix further says that it was and now is the duty of said defendant company to level and cut down its said roadbed and said elevation of its tracks so as to correspond with the surface of said Ninth, Tenth, and Eleventh streets at the points of intersection and where the same cross said railway, and to lower its tracks on its main line and side tracks and switches at said places so that the top of the rail will be on a level with the surface of said crossings as the said streets are now improved; and the said relatrix has frequently notified and requested said defendant company to lower its said roadbed and said tracks so as to be on a level with the surface of said streets as now improved, but that said defendant company has wholly failed and refused to comply with said request and notice, and to perform its said duty in reference to said crossings." In this state a railroad company is authorized to construct its road across a highway only on condition that it restore the highway "to its former state," or place it in such condition "as not to unnecessarily impair its usefulness," and that it construct its road across said highway "so as not to interfere with the free use of the same," and "in such manner as to afford security for life and property." Subdivision 5, § 5153, Burns' Rev. St. 1901 (section 3903, Rev. St. 1881; section 3903, Horner's Rev. St. 1901), in force since May 6, 1853. Chicago, I. & L. R. Co. v. State (Ind. Sup.) 63 N. E. 224, 225, and cases cited; Elliott, Roads & S. (2d Ed.) §§ 778-780; Elliott, R. R. §§ 1102, 11051112. The duty is imposed by statute, and it has been held that it exists independent of the statute. Railroad Co. v. Crist, 116 Ind. 446, 454, 19 N. E. 310, 2 L. R. A. 450, 9 Am. St. Rep. 865; Evansville & T. H. R. Co. v. State, 149 Ind. 276, 278, 49 N. E. 2, and cases cited; Chicago, I. & L. R. Co. v. State (Ind. Sup.) 63 N. E. 224, 225; Elliott, R. R. §§ 1102, 1105. In 1895 the general assembly passed an act which provided "that it shall be the duty of each railroad company whose road or tracks cross, or shall hereafter cross, any street, avenue or alley in any incorporated town or city in the state of Indiana, which said street, avenue or alley has been or shall hereafter be by addition, plat or otherwise dedicated to the public use to properly grade and plank or gravel its said road and track at its intersection with and crossing of said street, avenue or alley in accordance with the grade of said street or avenue in such manner as to afford security for life and property at said intersection and crossing." Acts 1895, p. 233, § 1, being section 5172a, Burns' Rev. St. 1901. It is said in Elliott, Roads & S. § 778, of the power of the legislature: "It may regulate the use of highways by a railroad company by requiring the crossings to be made in a particular manner, and may even impose upon the company the duty of adapting its track and grade to new highways, so as to make the crossing safe and convenient." Under the law as declared by this court in Chicago, I. & L. R. Co. v. State (Ind. Sup.) 63 N. E. 224, and the other cases cited, supra. the facts alleged in the alternative writ were clearly sufficient to withstand appellant's de murrer. Appellee insists that no questions are presented by the second, third, and fifth errors assigned. It has been uniformly held by this court that motions to modify, strike out, or add to the special findings are not recognized by our code of procedure. Where any or all of the facts found are not sustained by the evidence, or are contrary to law, or where facts should have been found, but were not, the proper remedy is a motion for a new trial. Allen v. Hollingshead, 155 Ind. 178, 180, 57 N. E. 917; Jones v. Mayne, 154 Ind. 400, 402, 403, 55 N. E. 956; Smith v. Barber, 153 Ind. 322, 332, 53 N. E. 1014; Oil Co. v. Terwilliger, 152 Ind. 364, 365, 53 N. E. 284; Banner Cigar Co. v. Kamm & Schillinger Brewing Co., 145 Ind. 266, 268, 269, 44 N. E. 455; Tewksberry v. Howard, 138 Ind. 103, 37 N. E. 355; Bunch v. Hart, 138 Ind. 1, 37 N. E. 537; Sharp v. Malia, 124 Ind. 407, 409, 25 N. E. 9. The special findings and conclusions of law stated thereon were announced and filed on December 15, 1900. No exceptions to the conclusions of law were taken on that day. Afterwards, on December 21, 1900, appellant filed a motion to amend the special findings as set forth in said motion, which motion was overruled by the court, after which appellant excepted to each conclusion of law. It is settled that to save any question for review by an exception to a conclusion of law the same must be taken when the conclusions of law are filed. Medical College v. Commin gore, 140 Ind. 296, 298, 39 N. E. 744, and cases cited; Radabaugh v. Silvers, 135 Ind. 605, 35 N. E. 694; Hull v. Louth, 109 Ind. 315, 333, 10 N. E. 270, 58 Am. Rep. 405, and cases cited; Barner v. Bayless, 134 Ind. 600, 605, 606, 33 N. E. 907, 34 N. E. 502; Winstandley v. Breyfogle, 148 Ind. 618, 620, 48 N. F. 224; Midland Ry. Co. v. Dickason, 130 Ind. 164, 166, 29 N. E. 775, and cases cited; Roeder v. Keller, 153 Ind. 692, 696, 35 N. E. 1014; Elliott, App. Proc. § 793, pp. 748, 749; Ewbank, Man, § 24, p. 28. The judgment rendered in this cause was in conformity with the conclusions of law, and, if appellant's motion to modify the judgment had been sustained, the judgment would not have conformed to the conclusions of law. The motion to modify the judgment was therefore properly overruled, even if the conclusions of law were erroneous. The remedy in such case is an exception to each of such conclusions of law, and assigning the same as error on appeal. The correctness of the conclusions of law cannot be questioned by a motion to modify the judgment, nor does such motion present any question if the judgment rendered conforms to the conclusions of law. Nelson v. Cottingham, 152 Ind. 135-138, 52 N. E. 702, and cases cited; Allen v. Hollingshead, 155 Ind. 178, 186, 57 N. E. 917; Maynard v. Waidlich, 156 Ind. 562, 565, 566, 60 N. E. 348, and cases cited; Jones v. Mayne, 154 Ind. 400, 402, 55 N. E. 956; Anglemeyer v. Board, 153 Ind. 217, 54 N. E. 803. Judgment affirmed. cient, which count is established by evidence of a single act, admitted by defendant, the sufficiency of the remaining counts is immaterial, though the finding of the jury affirmatively appeared to have been based on each count. 3. A magnetic healer advertised as such, and styled himself "Professor." He was not a graduate of any medical school, and had no license. He had practiced magnetic healing for several ycars. He diagnosed cases entirely by the nerves. On a certain day a patient came to him to be treated for a lame ankle. He diagnosed the case as rheumatism, and gave treatment which consisted of rubbing the afflicted parts. He charged and was paid $1 for the treatment. Held, that he was guilty of violating Burns' Rev. St. 1901, §§ 7318-7323e, making it unlawful for any person to practice medicine without first obtaining a license so to do. 4. Burns' Rev. St. 1901, §§ 7318-7323e, make it unlawful for any person, without having a license so to do, to open an office for the practice of medicine, or to announce to the public a readiness to so practice, or to give surgical assistance to, or to cure or relieve, or attempt so to do, those suffering from diseases. It regards the use of the words "doctor," "professor," etc., as practicing medicine. Held, that the act does not infringe the fourteenth amendment to the federal constitution, prohibiting any state to make or enforce any law a bridging the privileges of citizens of the United States, or to deny to any person the equal protection of the laws. 5. The statute is a valid exercise of the police power of the state, though it excepts from its requirements nonresident physicians legally qualified to practice in the state of their residence, when in consultation with a legal practitioner of the state, and when residing on the border of the state. 6. The statute is a valid exercise of the police power of the state, though it excepts from its requirements opticians; the employment of the optician and the medical practitioner being so diverse as to authorize the legislature to discriminate between them. 7. The statute is a valid exercise of the police power of the state, though it permits the granting of licenses for the practice of osteopathy, and excludes the practice of magnetic healing; the classification being reasonable. 8. Const. art. 4, § 19, declares that every act shall embrace but one subject and matters properly connected therewith, and such subject shall be expressed in the title. Act March 8, 1897, p. 255, is entitled "An act regulating the practice of medicine, providing for the issuing of licenses to practice, providing for the appointment of a state board of examiners, defining their duties, and defining certain misdemeanors and providing penalties." This act is amended by Acts 1901, p. 475, by making it unlawful for any person, without a license, to open an office for the practice of medicine, or to announce to the public a readiness to so practice, or to give surgical assistance, or to cure or relieve, or attempt so to do, those suffering from diseases, and by providing that the use of the words "doctor," "professor," etc., shall constitute the practice of medicine. Held, that the amendment is within the subject of the original act, and properly made a part thereof. Appeal from circuit court, Lawrence county; W. H. Martin, Judge. George P. Parks was convicted of practicing medicine without a license, and appeals. Affirmed. Spencer B. Peugh, for appellant. W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for appellee. 4. See Constitutional Law, vol. 10, Cent. Dig. § 629. GILLETT, J. Appellant was prosecuted, by affidavit and information, for practicing medicine without a license. There were three counts in the affidavit and information. Appellant moved to quash each count thereof, but his motion was overruled, and he excepted. Upon issue joined, a trial was had, that resulted in a finding of guilty as charged in each count. Judgment was rendered in accordance with the finding. A motion for a new trial, in connection with a proper assignment of error, presents the further question as to the sufficiency of the evidence. The first count of the affidavit and information was in the form prescribed by statute. Section 8, p. 475, Acts 1901 (Burns' Rev. St. 1901, § 7323c). It is contended, notwithstanding, that the charge is insufficient because of uncertainty. In Benham v. State, 116 Ind. 112, 18 N. E. 454, which was a prosecution for a like offense, the charge was in the same general form, and it was held sufficient by this court. It was there said: "We are of opinion, however, that the indictment in this case is not open to the objection that it does not state the offense charged with sufficient certainty. The offense charged against appellant herein is purely a statutory offense; that is, it was created and defined and its punishment prescribed by the provisions heretofore quoted of the aboveentitled act of April 11, 1885. In such a case it has been held by this court, as a general rule, that an indictment or information will be sufficient to withstand a motion to quash if it charge the offense in the language of the statute, or in terms substantially equivalent thereto. Howard v. State, 87 Ind. 68; State v. Miller, 98 Ind. 70; Ritter v. State, 111 Ind. 324, 12 N. E. 501; Trout v. State, 111 Ind. 499, 12 N. E. 1005. In the case under consideration it is conceded on behalf of appellant that the offense charged is a statutory offense, and that the indictment charges him with such offense substantially in the language of the statute. In Eastman v. State, 109 Ind. 279, 10 N. E. 97, 58 Am. Rep. 400, the appellant was prosecuted, as we may infer from the opinion of the court, as is the defendant in the case in hand, for unlawfully practicing medicine without having first procured from the proper clerk a license so to do. In the case cited the sufficiency of the charge seems to have been challenged, and upon this point the court there said: "The offense is charged in the language of the statute, and this is sufficient. State v. Miller, 98 Ind. 70, and cases cited; Graeter v. State, 105 Ind. 271, 4 N. E. 461; Antle v. State, 6 Tex. App. 202.'" Page 114, 116 Ind., and page 455, 18 N. E. Various acts may enter into the offense, but the acts, whether many or otherwise, constitute but one substantive offense, created by section 1 of the act of 1897 (section 7318, Burns' Rev. St. 1901), namely, the offense of practicing medicine, surgery, or obstetrics with |