track, and ever since said time the defendant had negligently suffered the derail to remain Out of repair and out of use, and in a Condition to permit cars to run from the Side track on to the main track; that before the time the train operated by the plaintiff Was due to pass II askells, the defendant caused to be run in from the main track on to the side track an empty freight car, and negligently left the freight car standing upon the side track unfastened, “well knowing at the time that the aforesaid derail SWitch arrangement had been Spiked and fastened,” thereby rendering the Switch in a condition that cars could run out of the siding on to the main track; and negligently failed to fasten, Or in any manner to secure said freight car so as to prevent its leaving the Side track and running out upon the main traCK, and that the defendant had full knowledge of all the matters averred in the paragraph. In addition to the allegations of the third, it is averred in the fourth paragraph that the defendant negligently left the freight car standing upon the siding, “well knowing at the time that the derail had been spiked and fastened, and was not in working order and the Side track SO connected with the main track that cars could pass from the side to the main track, and negligently failed to fasten, or in any manner to secure said car so as to prevent it from leaving the side track and negligently failed to repair the derail and put the same in working order So as to prevent the wind, or other power, from forcing said car out upon the main track. The defendant, at said time, had full knowledge of all the matters and things averred in this paragraph of complaint.” We are unable to see how the general rule asserted by appellant's counsel can help the client in this case, namely, that the master is not bound to furnish the servant With the newest and best safety devices, nor any particular kind, but that the master's duty is fulfilled When he furnishes a reasonably safe place to Work, and employs such appliances as are reasonably safe for the work designed. As respects the assumption of the risk, the question here is not whether the defendant was bound to put in, and keep in repair, the derails to keep stored and detached cars from being fortuitously forced out on to the main track. The fact is that the defendant did put them in, and had maintained them as a safety device for many years before the plaintiff's injury. The question presented, |tuerefore, is, can the company, after having adopted and successfully used the derails for a long period, permit them to get and remain out of working order, for an unreaSonable length of time, or remove or destroy the device altogether, without substituting other efficient means of escaping the same peril, and be unanswerable to an engineer injured by the absence of the derail, who had knowledge of the device, and who was relying, and had the right to rely, upon its being 7S N.E.—13

in Working order, at the time of his injury. The law did not require the company to put in the derails, but it did require it to employ Such means at that, and all other Sidings, as would make the operation of the railroad reasonably safe against derelict cars escaping from the siding to the main track. The means was a matter of choice, Within the limits of reasonable safety, but When the company elected to put in derails as its chosen safety device against such dangers, it was, while it pretended to maintain that System, as much duty bound to keep the derails in proper working order as it was to keep any other part of its track, or appliances, in proper condition. A workman going into the employ of a railroad company is bound to take notice of all the apparent Situations, conditions, and appliances, in Ways, and Working places, that have been provided by the company and is required to assume the risk of all the usual dangers that are incident to such places and conditions in conducting the business of the railroad. And when such conditions and appliances have been employed by the company for many years, as alleged, and the Workman has taken notice thereof, and shaped his conduct with respect to care, in accordance therewith, it would be unreasonable and unjust to permit the company to make a change, Or permit the same to become and remain Out of Working order, and thus increase the hazard of the employment, without notice to those exposed, and it will not, therefore, do to say that an employé injured by Such new and unknown peril had assumed the risk. Hunt v. Kane, 100 Fed. 256, 40 C. C. A. 372; Bender V. St. C., etc., R. Co., 137 Mo. 240, 250, 37 S. W. 132; Sherman v. Chicago, etc., Ry. Co., 34 Minn. 259, 25 N. W. 593. Both the third and fourth paragraphs of complaint show that the plaintiff knew of the derailing device and that, when in working Order, no car could pass to the main track from the siding without being accompanied by some one to set and adjust the derail; that the plaintiff passed the point in the night, had never used the siding, and had no knowledge, Or means of knowledge, that the device was not in Working Order, or that the company had abandoned it. Under Such facts it cannot be said, as matter of law, that the plaintiff, even though he approached the place in the face of a violent storm, took upon himself the risk of an unfastened car being driven by the Wind from the siding to the main track, or that he was guilty of contributory negligence for not observing, On account of the storm, increased care to avoid accident from Such escaped Car. The demurrer to each the third and fourth paragraphs of the complaint was properly overruled. 3. It is earnestly contended that the first and Second instructions given by the court upon the request of the plaintiff Were erroneous and harmful to appellant. In the first the court called attention to the plaintiff’s theory of the case, and in the second to the essential elements the plaintiff should establish to entitle him to recover, both of which, in substance, follow: Hirst. The plaintiff sues for damages for injuries which he claims Were caused by reason of the negligent failure of the company properly to maintain a derail SWitch arrangement, by reason of Which negligence an empty box Car WaS permitted to blow Out on the main track and cause the injury. Second. The plaintiff has the burden of proving all material allegations of his complaint. To recover he must prove that, when injured, he was in the employ of the company, and that the injury was the result of the negligence of the defendant, in its failure properly to maintain the derail switch arrangement, and In allowing an empty box car to be upon its main track and cause the Collision. “The eSsential elements to be proven by the plaintiff in order that he may recover are, that he shall establish to your Satisfaction that the said derail switch arrangement was defective, or not in working order; that the plaintiff did not knoW of Said condition, and that the company had notice or knowledge of the same, or that the nonworking condition of the derail had existed for Such a period. Of time prior to the injury that in your judgment the company ought to have known of it. Then in addition if you find that the plaintiff himself was not guilty of negligence contributing to the injury, he has made out his case and should recover.” In other words, the jury is informed that the plaintiff has made out his case and should recoVer if he has satisfactorily established three things: (1) That the derail switch was defective, or not in working order; (2) that the plaintiff did not know of the condition; (3) that the defendant did know, Or Ought to have knoWn it. - We do not see how the last instruction Can be sustained. It implies the absolute duty of the railroad company to maintain the derail in working order. It impliedly denies the right of the company to employ any other kind of device, however efficient, and approved by railroading experts, to prevent cars from being blown out of the siding. It implies that the failure to keep the derail in working order was conclusive evidence of the company’s negligence. It is entirely too narrow. In effect it takes the question Of defendant’s negligence from the jury. There Was evidence tending to show that the box car, after being placed on the side track, was so locked and fastened by the brake as to render it immovable by the Wind, except by an unusual and extraordinary Wind Storm. TJnder this evidence—aSSuming that the derail Was Out of Working Order—the Company Was entitled, on the subject of its negligence, to Submit to the jury the question, whether the manner in which the box car was fastened and secured on the Side track Was Such rea

sonable precaution against the car being forced out of the siding by the Wind, as would amount to ordinary care under all the facts and circumstances existing at that particular siding. The master owes to his servant ordinary care to provide a reasonably safe working place. But, as a rule, he is not required to adopt any particular mode of construction, kind of device, or appliance, to be in the exercise of Ordinary care. The test generally is, not whether this or that kind of means have been adopted, but Whether, with the method of construction, or particular device or appliance employed, the place, under all the circumstances of the case, is reasonably safe for a performance of the duties of the employment. Wabash, etc., R. Co. v. Ray, 152 Ind. 392, 398, 51 N. E. 920; Railroad Co. v. Driscoll, 176 Ill. 330, 52 N. E. 921; Kern V. De Castro, etc., Co., 125 N. Y. 50, 25 N. E. 1071; Bohn V. Railroad Co., 106 Mo. 429, 17 S. W. 580; Hewitt v. Flint, etc., R. Co., 67 Mich. 61, 34 N. W. 659; Norfolk, etc., R. Co. v. Cromer, 101 Va. 667, 44 S. E. 898; Labatt, Master & Servant, vol. 1, § 35; 3 Elliott's R. R. § 1272; Sheets V. Railroad Co., 139 Ind. 682, 689, 39 N. E. 154. It is not negligent per se to fail to maintain a derailing device. Norfolk, etc., R. Co. v. Cromer, 101 Va. 667, 44 S. E. 898. It is not always negligence to fail to provide a side track with stop blocks. HeWitt V. Flint, etc., R. Co., 67 Mich. 61, 34 N. W. 659. It is also essentially necessary, in such cases, that the plaintiff prove that the injuries complained of resulted proximately from the alleged negligence of the defendant. Railroad Co. v. Young, 146 Ind. 374, 376, 45 N. E. 479, and cases cited. In the former part of the instruction the court directed, in a general way, that the plaintiff must prove that his injuries resulted from the negligence of the railroad company in failing to maintain the derail, but this element of the case is wholly omitted from that part of the instruction in which the court undertakes to sum up the particular facts that will entitle the plaintiff to recover. The language is: “The essential elements necessary to be proVen by the plaintiff, in order that he may recover are, * * * then, in addition, if you find that the plaintiff himself was not guilty of negligence contributing to the injury, he has made out his case and should recover.” The very best that may be said of the instruction in this particular is that it is ambiguous and calculated to confuse and mislead the jury. Another objection to the instruction, equally fatal, is found in the second essential element enumerated, namely, the limitation of the plaintiff's knowledge, to actual knowledge. The words of the court are: “That the plaintiff did not know of such condition.” So far as the question related to the plaintiff's contributory negligence the fact of his Rnowledge, actual or contributory, was matter of defense, and not necessary to the plaintiff’s right of action, but as showing his right to recover, and that he did not take upon himself the risk of the impaired derails, as a peril ordinarily incident to the employment, or aS One SO apparent, and So long existing that he should have known it by the exercise of ordinary care, and held to have assumed it by continuing in the service, the want of knowledge both actual and imputed became material facts for him to establish, to Warrant a recovery. Indianapolis, etc., Co. v. Foreman, 162 Ind. 85, 101, 69 N. E. 669, 102 Am. St. Rep. 185, and cases cited; Indiana, etc., Oil Co., W. O'Brien, 160 Ind. 266, 270, 65 N. E. 918, 66 N. E. 742, and cases collated; Pennyslvania Co. v. Ebaugh, 152 Ind. 531, 534, 53 N. E. 763; Chicago, etc., R. Co. v. Glover, 154 Ind. 584, 586, 587, 57 N. E. 244; Wood, Master and Servant, $422.

For error of the court in giving instruction No. 2 the judgment must be reversed. Numerous other questions are presented, relating to the admission and exclusion of evidence, but as such questions are not likely to arise again upon a retrial of the case, We omit their consideration.

Judgment reversed, and cause remanded, with instructions to grant the appellant a new trial.

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2. INTOxICATING LIQUORs—CIVIL DAMAGES ILLEGALITY OF SALE. Acts Sp. Sess. 1875, p. 58, c. 13, $ 15, making it a misdemeanor to sell liquors to an intoxicated person, is still in force so far as it aids in support of a civil action under Burns’ Ann. St. 1901. § 7288, making every person unlawfully selling liquor liable personally and on his bond. 3. SAME—DEFENSES-SALE BY AGENT. The fact that an unlawful sale of liquor to an intoxicated person was not made by defendant, but by his bartender, who had authority to conduct and carry on the saloon business, is no defense to an action on the bond. [Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, $91.]


Acts Sp. Sess. 1875, p. 58, c. 13, $ 15, makes it a misdemeanor to sell liquor to an intoxicated person, and Burns' Ann. St. 1901, § 7288, makes a liquor dealer liable personally and on his bond for unlawful sales of liquor. Held, that a complaint in an action against a liquor dealer and the sureties on his bond, alleging that defendant sold liquor to plaintiff while he was intoxicated, and that defendant permitted plaintiff while so intoxicated to be thrown down and injured, was demurrable as showing no connection between the unlawful sale and the injury.

Appeal from Circuit Court, Madison County; Jno. F. McClure, Judge.

Action by the state, on relation of Edward Brough, against John Terheide and others. From a judgment sustaining a demurrer to the complaint, relator appealed to the Appellate Court, from whence the cause was trans. ferred to the Supreme Court under Burns' Ann. St. 1901, § 1337u. Affirmed.

W. R. Myers, S. L. Brooks, B. R. Call, and E. R. Call, for appellant. Kittinger & Diven,

for appelleeS.

JORDAN, C. J. This is an action to recover on the bond of a retail liquor dealer. Appellee Terheide is the principal in the bond in suit and his co-appellees are sureties thereon. The complaint is in two paragraphs, under each of which damages are claimed by the relator, Edward Brough, by reason of a personal injury sustained by him on account of the illegal sale to him of intoxicating liquors. Each of the defendants to the action separately demurred to each paragraph of the complaint for insufficiency of facts. The demurrers were sustained to each paragraph, and judgment was rendered against appellant on demurrer. The errors herein assigned are predicated upon these rulings of the lower COurt.

Appellees have moved to dismiss the appeal on the ground of appellant's neglect in the preparation of the brief to comply with the rules of this court; but inasmuch as Opposing counsel have supplied the omissions attributed to appellant, the motion to dismiss is denied.

The first paragraph of the complaint, after disclosing that appellee Terheide had been duly granted a license by the board of commissioners of the county of Madison to retail intoxicating liquors in the city of Anderson, and that he, together with his co-appellees, executed the bond in suit in accordance with the provisions of section 7279, Burns' Ann. St. 1901, proceeds to allege the following facts: On November 2, 1902, one William Tyner was acting as a bartender and agent of the defendant Terheide in the sale of intoxicating liquors in said defendant's saloon. It is averred that up to the time of 3 o'clock p. m. on said day the relator, Brough, had purchased of the said Tyner and drank in appellee's Saloon four glasses of intoxicating liquor, to wit, beer; that at the said hour of 3 o'clock upon said day, at the time when he entered said saloon, he was in an extremely drunken and intoxicated condition, Which intoxication Was in part due to liquors sold to him by said Tyner; that he was partially delirious, and reeled and staggered in Walking, all of which facts were then and there well known to said Tyner, but notwithstanding this knowledge of the latter relative to the relator’s intoxicated condition, said Tyner then and there sold to him one glass of Whisky and three glasses of beer, all of Which intoxicating liquors Were drunk by the relator. About 4 o'clock in the afternoon of said day, after the relator had drunk the intoxicating liquors as hereinbefore alleged, and while he Was in an extremely intoxicated condition as aforesaid stated, Said Tyner, the agent of the defendant Terheide, suffered and permitted one Frank Tyner, Without cause, provocation, or excuse, to Violently throw the relator to the floor, whereby his right leg was broken, etc., and by reason thereof he has been damaged, etc. The Second paragraph alleges the same facts. as the first, but in addition thereto expressly avers that said 2d day of November, 1902, was the first day of the week, commonly called Sunday; that defendant Terheide unlawfully kept his saloon open for the Sale of intoxicating liquors on said day, and by his said agent, William Tyner, sold such liquors in his said saloon to all Who applied therefor; that his Saloon was the greater part of the said day filled with men Who Were buying and drinking intoxicating liquors therein; that at the time the relator entered said Saloon upon said day, between the hours of 3 and 4 o’clock p. m., it was filled with a large number of drunken and disorderly men, who were drinking intoxicating liquors; that said William Tyner, the agent of the defendant Terheide, then and there suffered and permitted one Frank Tyner to violently throw the relator to the floor, without cause, provocation, or excuse, thereby breaking his right leg, etc., for which damages are demanded. Section 7279, Burns' Ann. St., which embraces section 4 of the act of 1875, providing for the granting of a license to retail intoxicating liquors (Acts Sp. Sess. 1875, p. 56, c. 13) provides that the person obtaining such license shall give a bond in the sum of $2,000, conditioned “that he will keep an orderly and peaceable house and that he will pay all fines and costs that may be assessed against him for any violations of the provisions of this act and for the payment of all judgments for civil damages growing out of unlawful sales, as provided for by this act.” Section 7288, Burns' Ann. St., Which is section 20 of said act of 1875, declares that “every person who shall sell or give away any intoxicating liquors in violation of any of the provisions of this act shall be personally liable and also liable on his bond,” etc., “as required by section 4 of this act, to any person who shall Sustain any injury or damages to his person Or property, Or means of Support, On account of the use of such intoxicating liquors so sold as aforesaid.” Each of the paragraphs of the complaint shows that the agent of Terheide sold intoxicating liquors to the relator when the later was in a state of intoxication, in Violation of Section 15 of the act of 1875. This section is Still in force So far as it aids in support of a civil action under section 7288, supra. Mulcahey v. Givens, 115 Ind. 286, 17 N. E. 598; Homire v. Halfman, 156 Xnd. 470, 60 N. E. 154; Baecher V. State ex

rel., 19 Ind. App. 100, 49 N. E. 42. It follows that appellee Terheide, under the facts, through his agent or bartender, must be held to have Violated the provisions of Said Section 15 by selling intoxicating liquors to the relator While the latter Was in a state of intoxication. Consequently he is shown to have been a Wrongdoer and must be held liable personally, or on his bond, as the case may be, for all injuries or damages caused either directly or remotely by reason of said wrongful act. Homire V. Halfman, Supra; McCarty v. State, ex rel., 162 Ind. 218, 70 N. E. 131. The fact that the unlawful Sales Of the liquors in question were not personally made to the relator by Terheide, the proprietor of the saloon, but were made by his bartender or agent, Who at the time had authority to conduct or carry on the Saloon business for Terheide, in no Sense can be said to relieve appellees herein of liability on the bond. They are just as liable and in like manner and to the same extent that they would be had the Sales in question been made in person by Terheide, the proprietor of the saloon. Nelson v. State ex rel., 32 Ind. App. 88, 69 N. E. 298, and authorities there cited.

But the principal and fatal infirmity of each paragraph of the complaint is that under the averments thereof no connection whatever with the unlawful sales of the liquor to the relator and the injury which he Sustained by the assault made upon him by Frank Tyner, a third party, is shown. There are no facts alleged from which it may be legitimately inferred that such sales of liquor in any manner occasioned or resulted in the alleged assault made upon the relator by Frank Tyner. There is an entire absence of any positive averments to establish that Tyner was, at the time he assaulted the relator, intoxicated by reason of any unlawful sale of liquor made by either Terheide or his agent. In State ex rel. v. Knotts, 24 Ind. App. 477, 56 N. E. 941, the Appellate Court held that there was no liability on the part of a saloon keeper for damages arising out of the murder of the relator's husband committed by the agent of the retailer in that case; said agent at the time being in charge of the saloon, which was then and there kept and maintained in a disorderly manner. On no view of the case, under the facts alleged in the complaint, can the latter be held to state a good cause of action on the bond in suit. The demurrer, therefore, was properly sustained.

Judgment affirmed.

Ed (167 Ind. 262)

WABASH RIVER TRACTION CO. v. BAKER. (No. 20,788.)* (Supreme Court of Indiana. June 7, 1906.) 1. CARRIERS—INJURY TO PASSENGER-ACTION —QUESTION FOR JURY. In an action against a street railroad for injuries to a passenger, held, that the question whether she was guilty of contributory negli

*Rehearing denied October 25, 1906.

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MONTGOMERY, J. Appellee recovered a judgment for a personal injury Sustained While being carried as a passenger by appellant. The only assigned error relied upOn is the overruling of appellant's motion for a new trial. The grounds of the motion urged upon us are insufficiency of evidence to sustain the verdict and error of law in giving to the jury instructions numbered 2 and 4 at the request of appellee.

Appellee was returning to the city of Wabash from Boyd Park, and it was near midnight when she was hurt. The car was crowded, the seats were full, and passengers sitting in the laps of others, the aisles and vestibules were filled, and some boys Were on top of the car. Appellee was required to Stand until, becoming tired, She removed her jacket and with it made a seat for herself upon the step leading from the rear vestibule into the car proper. She had notified the conductor that she desired to get off at “South Side,” a customary stopping place in the city of Wabash. As the car approached her destination its speed was slackened until it did not exceed one mile per hour, whereupon appellee arose and descended to the lower step ready to alight when the car should come to a full stop. The power was suddenly applied, causing the car to lurch forward, throwing the standing passengers off their balance, and bunching them together, and throwing appellee against the vestibule door and out upon the ground with great violence. Appellant's counsel argue from these facts that appellee voluntarily left a place of safety, and took a perilous position upon the car, and that she is guilty of contributory negligence as a matter of law. If appellee had been furnished

a customary seat within the car, this argu

ment would impress us more favorably, but

it can hardly be conceded that she was in a place safe against such perils as produced her injury, so long as she was required to stand, or to occupy an improvised Seat in the doorway where she was liable to be trampled by the standing passengers of the Crowded car. The lateness of the hour, and the unusual number on board Would naturally suggest the desirability of dispatch in the discharge of passengers, and the slow speed at which the car Was running would ordinarily induce a person already Standing to believe that it was safe to move toward the place of exit, and We cannot say that, under the circumstances shown, appellee was guilty of negligence in moving down to the lower step of the car, but affirm that the question of her negligence was rightly submitted to the jury for determination. Indianapolis, etc., R. Co. v. Hockett, 159 Ind. 677, 66 N. E. 39; Citizens', etc., R. Co. v. Merl, 26 Ind. App. 284, 59 N. E. 491; Anderson v. Citizens', etc., R. Co., 12 Ind. App. 194, 38 N. E. 1109; Citizens', etc., R. Co. v. Spahr, 7 Ind. App. 23, 33 N. E. 446; Chicago City Ry. Co. v. McCaughna (Ill.) 74 N. E. 819; Alton Light & Traction Co. v. Oliver (Ill.) 75 N. E. 419. Complaint is made of the giving of instruction No. 2, Which reads as follows: “The court charges you that there is a higher degree of care imposed upon street railways than upon ordinary Steam railways, and if you should find in this case, by the evidence, that the plaintiff was a passenger on One of clefendant's cars on the night in question, returning from Boyd Park, bound for her home in Wabash, and in giving her ticket to the conductor, notified him that she wished to be put off at the regular stopping place in said city, known as ‘South Side, it was the duty of the defendant, the street car Company, to carry the plaintiff safely to said stopping place, and its duty toward the plaintiff as a carrier of passengers was not disC11arged or ended until they had conveyed ner to the point designated, and set her down as safely as the means of conveyance employed and the circumstances of the case would permit, she exercising at the time, due diligence and care, and not being guilty of contributory negligence.” The opening statement embodied in this instruction, that a higher degree of care is imposed upon street railways than upon ordinary steam railways, is not approved either as a proper method of defining a duty or as a correct Statement of L-he law, although it was taken from the opir in Anderson V. Citizens', etc., Ry. Co., 12 Ind. App. 194, 197, 38 N. E. 1109. The care required of a steam railroad for its passengers is nowhere stated in the instruction, but that company is not before us, and if it were could not complain because its duty was understated. The duty of a street railway company towards passengers is defined with reasonable accuracy in

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