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N. E. 1106; Nesbit v. Hanway, supra; Hodson v. Treat, 7 Wis. 263.

Appellants also bitterly complain of the action of the trial court in taking into account the question of taxes, rents and improvements. They insist that any question in that regard ought not to have been injected into this controversy, upon the theory that they are independent of appellee's right to redeem, and one that requires an entire separation in order to adjust the rights between appellants. Appellee tendered this issue. He was in a court of equity, and was entitled to have this issue, as between appellants and himself, determined. Gaskell v. Viquesney, 122 Ind. 244, 248, 23 N. E. 791, 17 Am. St. Rep. 364; Dailey v. Abbott, 40 Ark. 275, 282; Ruckman v. Astor, 9 Paige (N. Y.) 517. In Dailey v. Abbott, supra, it is held that "as long as the right of redemption exists, the mortgagor is entitled to rent, if the mortgagee is in possession, taking the rents and profits. The statute prolongs the mortgagor's right of redemption for one year after the sale. The purchaser at the sale takes the place of the mortgagee, and if he takes possession of the land before the period of redemption expired, there is no good reason why he should not be accountable for the rents and profits. On redemption he gets the purchase money with interest at ten per cent. His vendor occupies no better position. 2 Jones on Mortgages, § 1118." As between appellants, this issue was not tendered, but we see no reason why their rights might not have been adjudicated in this action, had they chosen to tender that issue, upon the theory of preventing a multiplicity of suits, but as this question is not before us, we decline to further consider it. Appellants, in their petition for a rehearing, complain because we did not consider the sufficiency of the evidence to support the special findings. In their original presentation of the case this question was not presented, and, not having been presented then, they are not entitled to raise it now and have it considered on a petition for a rehearing. Indiana Power Co. v. St. Joseph, etc., Power Co., 159 Ind. 42, 63 N. E. 304, 64 N. E. 468; Sunnyside, etc., Coke Co. v. Reitz, 14 Ind. App. 478, 39 N. E. 541, 43 N. E. 46.

Finding no reason for changing our former opinion in this case, the petition for a rehearing is overruled.

(39 Ind. App. 333)

SOUTHERN INDIANA RY. CO. v. OSBORN. (No. 5,796.)1 (Appellate Court of Indiana, Division No. 2. June 19, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-RAILROADS-COLLISION-COMPLAINT. A fireman, injured in a collision between two locomotives, alleged that the collision was caused by the carelessness of the railroad's engineer, G., in charge of the locomotive on which plaintiff was working, while plaintiff was 1 Rehearing denied, 79 N. E. 1067.

in defendant's service and in the exercise of due care; that the train on which plaintiff was working was a work and freight train, and that the injury occurred on a curve, where the engineer was on the inside of the curve, and where he could plainly see the train with which he collided; and that the engineer had full charge of such locomotive, which was on defendant's railway. Held, that such paragraph was not objectionable as merely alleging by way of recital, and not by averment, that G., the engineer, was in charge of the engine. 2. SAME-EVIDENCE.

In an action for injuries to a servant in a collision between two locomotives, evidence as to how many and who were hurt was competent as showing the force of the collision and the extent of the accident. 3. EVIDENCE-OPINION.

Plaintiff, a railroad fireman, claimed that he was injured in a collision between two engines, caused by the negligence of defendant's engineer. In answer to a question whether he knew of anything to prevent the engineer from seeing down the track prior to the accident, he answered that he did not know why he did not see the approaching train, that if he had been looking he could have seen the engine, and that he (plaintiff) could have seen if he had been on that side of the engine. Held, that plaintiff's answer was merely a statement that there was nothing to prevent the engineer from seeing the approaching locomotive, if he had looked, and was not, therefore, objectionable as an opinion of the witness.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 2151.]

4. APPEAL-EVIDENCE-HARMLESS Error.

Where, in an action for injuries to a locomotive fireman in a collision, there was uncontradicted evidence from which the jury could have fairly inferred negligence of defendant's engineer, defendant was not harmed by the introduction of a declaration of such engineer made 45 minutes after the accident, admitting that the accident was the result of his carelessness.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4161, 4163, 4165.]

5. MASTER AND SERVANT-INJURIES TO SERVANT-ACTION-INSTRUCTIONS.

In an action for injuries to a locomotive fireman by the negligence of his engineer, the court charged Employers' Liability Act 1893, (Acts 1893, p. 294, c. 130) § 1, cl. 1, and instructed that if plaintiff was injured through any defect in the condition of defendant's ways, works, plant, tools, or machinery, as provided by such act, in that there was no provision for signaling trains or any telegraph or telephone, and that plaintiff, while in the exercise of due care and while in the service of defendant, was thereby injured, he was entitled to recover. Held, that such instruction was not objectionable as requiring plaintiff to exercise "due care," but in omitting the equally important factor of "diligence."

6. SAME-FELLOW SERVANTS-INSTRUCTION. Where, in an action for injuries to a locomotive fireman, defendant was liable for the negligence of the engineer in charge of the engine on which plaintiff was employed, as provided by Employers' Liability Act 1893 (Acts 1893, p. 294, c. 130), a requesteu instruction that plaintiff and such engineer were fellow servants and that if his injuries were caused by the engineer's negligence, he could not recover, was properly refused.

7. TRIAL-INSTRUCTIONS-REFUSAL.

Refusal of instructions covered by the charge held not error.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 651-659.]

Appeal from Circuit Court, Lawrence County; Jas. B. Wilson, Judge.

Action by John W. Osborne against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Brooks & Brooks and E. C. Ritsher, for appellant. H. P. Pearson, for appellee.

COMSTOCK, P. J. Action for personal injuries received by appellee in a collision between two locomotive engines on appellant's railroad. Appellee was a fireman on one of the engines. It was alleged that appellant and its engineer in charge of the engine on which appellee was riding, were negligent in not keeping a lookout and in running the engine at a dangerous and excessive speed. The complaint is in three paragraphs. The first is under the employers' liability act, Burns' Ann. St. 1901, § 7083, clause 4, and is founded upon the negligence of the engineer in charge of the locomotive. The second is under the same clause of the same statute but avers the negligence to have been that of one Coyl, alleged to have been in charge of the appellant's switchyard. The third alleged that the collision was brought about by defects in the appellant's ways, works, etc. The cause was put at issue by general denial, a trial had by jury and a verdict returned in favor of appellee for $500. The appellant relies for reversal upon the action of the court in overruling its motion for a new trial and in overruling its demurrer for want of facts to the first paragraph of the complaint.

In support of its demurrer to this paragraph appellant claims that inasmuch as it is based upon the theory of the negligence of Gibson, the engineer, it should aver that he was in charge of the engine; that this fact is only made to appear by recital. Among the averments of this paragraph of the complaint, are the following: "That said collision was brought about by the carelessness of defendant's engineer, Raymond Gibson, in charge of said locomotive on which plaintiff was working at the time while plaintiff was in the service of said defendant and in the exercise of due care and diligence; that the train on which plaintiff was working, was a work and freight train and was on what is known as the 'Sullivan Branch' of said road; that the train on which he was working as such fireman was going in the direction of Sullivan; * * * that said injury occurred on a curve and said engineer was on the inside of said curve and said train on which plaintiff was riding collided, was in plain view from said engineer's side but not in plain view or in view at all from the fireman's side; that said engineer had full charge of said locomotive which was at said time on one of appellant's railways; that plaintiff could not see said approaching train and especially was he totally in the dark with reference to same because of the performance

of his duties as hereinbefore set forth." These averments fully meet the objection made. The grounds set out in the motion for a new trial are that the verdict was contrary to law; is not sustained by sufficient evidence; errors in rulings on the evidence; in giving instruction No. 4 and in refusing to give certain other instructions.

The following is substantially a statement of the evidence material to a consideration of the motion for a new trial: Appellee was a locomotive fireman on appellant's engine No. 18, of which Raymond Gibson was the engineer. At the time of the accident, the engine with a caboose attached, in which were the men of the pile driver crew, was running on the Sullivan branch of appellant's railroad. This branch of the railroad had been in use for three or four months for hauling coal. Engine 18 left the main line and went on the branch between 6 and 7 a. m., and had run about a mile and a half, and while running about 20 or 25 miles an hour, came in collision with engine No. 25, drawing several loaded coal cars. Engine 25 was backing. The effect of the collision was to damage both engines. damage both engines. Immediately after the collision the engines were apart about a rail's length. No one testified as to the cause of the engines parting; whether one or both were reversed, or not. Appellee was thrown down in the gangway of the engine, the coal in the tender falling on him. It was from 20 to 45 minutes before appellee was relieved from the coal. He received injuries which were described by himself and others. was not able to work for several weeks. He received permanent injuries. At the time of the trial he was a locomotive fireman on the Monon. The only persons to receive orders for the running of the train were the conductor and engineer. There was no telegraph or telephone line on the Sullivan branch nor any schedule for trains or engines to run. There is no evidence that they were given orders or warning from the yard master or any one else as to the running of the train. At the time of the collision appellee had gotten down from his seat and was about to put coal in the fire. He did not see the approaching engine. Engineer Gibson was on the inside of the curve in his cab, and could have seen an approaching train for a quarter of a mile. He was talking with Smithers and Stafford just immediately before the accident.

He

During the examination of Smithers, he was asked the following question: "Q. 10. Tell the jury how many were hurt in that wreck, and how they were hurt." Over the objection of appellant, he answered: "A. I don't know. Everybody around there was hurt. Q. 1. Who were the two conductors? A. O'Day was ours. Q. 2. Was he injured? A. Yes, he was injured." These questions were answered over the objection of the appellant and its motion to strike out the portions of the testimony of the witness relative to the

injury of the other persons, was overruled. As tending to show the force of the collision and the extent of the accident, it was not error to admit these questions.

Appellee, on his own behalf, was asked: "Q. 7. Do you know anything to prevent the engineer from seeing down the track?" Appellant's objection to the same was overruled, and he answered: "No, sir; I don't know why he didn't see the train. If he had been looking he could have seen the engine. I could have seen if I would have been on that side." The testimony of witnesses, must as a general rule, be confined to the statement of facts. Where the facts can be fully placed before the jury, opinion evidence is incompetent, if the facts are of such a nature that juries are as well qualified to form an opinion upon them as witnesses. The question called for the statement of a fact-the witness's knowledge of any obstruction on the track. A portion of the answer was also the statement of a fact and altogether it merely states that there was nothing to have prevented the engineer from seeing the approaching locomotive if he had looked. It must have been SO understood by the jury. Indianapolis St. Ry. Co. v. Robinson, 157 Ind. 414, 61 N. E. 936.

Appellee was also asked the following questions: "Q. I will ask you if you had any talk with the engineer at the time of the accident as to who was to blame for the accident?" The question was objected to as not a part of the transaction, and that it called for a conclusion and not a fact. The objection was overruled and the witness answered: "A. Gibson said, 'Look what I have done through my own carelessness,' and was crying." The appellant moved to strike out the answer of the witness, because it was hearsay, and not res gestæ, and not responsive to the question, and was the opinion of the witness, and not a statement of fact, which motion was overruled. Upon further examination of the witness, it appeared that this statement was made after the appellee had been taken out from under the coal and after Stafford, who was killed, had been taken out of the wreck and from 20 to 45 minutes after the accident. We need cite no authority in support of the proposition that the admissions of an agent made after an event, to which they refer, has transpired, cannot be received as evidence to bind his principal, unless they are so immediately connected therewith as to become a part of the res gestæ. Whether statements are a part of a transaction are often questions difficult of solution. We do not deem it necessary to decide in this instance, whether or not, the statement made in answer to the question was or was not a part of the tran- | saction. Whether it be construed as the narration of a past event admitting his negligence or an expression and manifestations of regret, in either event it was harmless be

cause there was evidence uncontradicted from which the jury could have fairly inferred the negligence of the engineer. Hopkins et al., receiver, v. Boyd, 18 Ind. App. 78, 47 N. E. 480. The engineer was not a wit

ness.

Instruction 4 objected to is as follows: "The Laws of the General Assembly of Indiana of 1893 contain an act in force in this state to-day-'that every railroad or other corporation, except municipal, operating in the state, shall be liable for damages for personal injury suffered by any employé while in its service, the employé so injured being in the exercise of due care and diligence, in the following cases.' Said act then proceeds to enumerate four cases where the company will be liable. Clause No. 1 of said act reads as follows: 'When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools, and machinery connected with or in use with the business of said corporation, when such defect was the result of negligence on the part of the corporation or some person en-. trusted by it with the duty of keeping such ways, works, plant, tools, or machinery in proper condition.' If therefore, gentlemen of the jury, you find from the evidence in this case that plaintiff has been injured and that such injuries were brought about by the reason of any defect in the condition of ways, works, plant, tools, and machinery as set forth in said first clause just read, in that there was no provision for signaling trains or any telegraph or telephone and that plaintiff, while in the exercise of due care and while in the service of defendant, was thereby injured, then your verdict should be for the plaintiff in such amount as the law and the evidence warrants." The objections made to the instruction are that it charges the jury to find for the plaintiff if he exercises "due care" but omits the equally important factor of "diligence," and that it assumes that the absence of telephones and telegraph was negligence. Due care embraces diligence and the conditional statement with reference to provision for signalling trains, in view of the allegation of the third paragraph of complaint, could not have misled the jury.

The sixth instruction refused would have told the jury that at the time of the accident the engineer, Gibson, and the plaintiff were fellow servants and if the injuries of the plaintiff were caused by the negligence of Gibson, then the plaintiff could not recover. Under the employers' liability act, the appellant was made liable for the negligence of the appellant's engineer.

Instruction No. 7 refused, instructed the jury to find for the defendant on the first paragraph of the complaint; No. 8, refused, to find for the defendant on the second paragraph; No. 9, refused, to find for the defendant on the third paragraph of the complaint. There was some evidence fairly tending to

support each one of these paragraphs, and it was, therefore, not error to refuse these instructions.

Appellant also complains of the refusal of the court to give instruction 10. From the transcript it appears that said instruction was given, but if it had been refused, in view of other instructions, which were given by the court, there would have been no reversible error. The record presents a case of a daytime collision. There is evidence that appellee has suffered permanent injuries, though not of the most serious character, without negligence on his part, while in the discharge of his duty and negligence upon the part of the appellant, and under the letter and spirit of the statute upon the whole record the judgment should be affirmed.

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Under the rule that inferences cannot be drawn as against the general verdict, where, in an action for injuries sustained by plaintiff through the fall of defendant's elevator, negligence was charged in failing to provide proper safety devices, an interrogatory and answer stating, in effect, that the elevator was furnished with safety appliances usually placed on freight elevators did not form a basis for an inference that the verdict for plaintiff did not rest on the alleged negligence; the condition of the appliances not being shown.

2. NEGLIGENCE-INJURIES-DEFECTIVE ELEVA

TOR-EVIDENCE.

In an action for injuries to plaintiff through the falling of an elevator, through alleged negligence of defendant in failing to provide the same with safety devices, evidence of the customary manner of constructing an elevator was admissible.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, § 238.]

3. SAME - EXERCISE OF DUE DILIGENCE BY OWNER-USAGE.

In determining whether the owner of an elevator exercised due diligence in making the same reasonably safe, the usage of others is not the sole criterion, and it cannot be concluded as a matter of law that due diligence has been employed because the elevator is such as is ordinarily used for like purposes. 4. SAME RES IPSA LOQUITUR.

The fact that a safety device or catch, placed on an elevator to prevent it from falling in case of accident, wholly fails to act in an emergency, tends to establish negligence on the part of the owner under the rule res ipsa loquitur. [Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, 218.]

5. SAME-DUTY OF INSPECTION-USE.

In order that the doctrine of res ipsa loquitur be applicable in an action for injuries through negligence, it must appear that both the duty of inspection and the use of the machine or appliance causing the injury were at the time thereof under defendant's control.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, § 218.]

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Action by Melvin L. Wilson against the National Biscuit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Miller, Elam & Fesler, for appellant. John M. Bailey and F. C. Durham, for appellee.

ROBY, J. Action by appellee for damages on account of personal injuries sustained through the fall of an elevator. Verdict for $4,000, with answers to 54 interrogatories. Appellant's motion for judgment on answers to interrogatories was overruled, as was also its motion for a new trial. Judgment on the verdict.

The assignment of error is that the court erred in overruling the motion for a new trial. The complaint is in three paragraphs. In the first it is averred that appellant maintained an elevator in its building for the purpose of transporting merchandise and employés from one floor to another. That it failed to properly inspect said elevator, allowed it to be overloaded and its machinery to become out of repair and unsafe, because of which a large cogwheel therein broke at the time of appellee's injury; he being on December 16, 1900, in appellant's employment and in the course of his duty, engaged in taking flour on said elevator from the first to the third story of said building. And that, while going up with the load, the elevator, because of its unsafe condition, fell without warning, thereby injuring him, etc.

The second paragraph contains practically the same charges of negligence as the first, and, in addition thereto, that the appellant failed to provide proper safety devices to catch the car in case of accident, and that because of the lack of such devices the elevator fell, etc. In the third paragraph it is further charged that said elevator had been allowed to become worn and out of plumb, by reason of which it shook from side to side. That on the occasion of appellee's injury a truck, holding flour, was being elevated, and, by reason of such condition, caught on the floors of said building, causing the elevator to break, and, there being no safety catches and appliances on said elevator sufficient to catch and hold the same, it fell, etc. All of said acts and omissions are alleged to have been negligent, and allegations are made of appellant's knowledge, and appellee's lack of knowledge; that the negligence set out caused the injury and resulted in damage.

It was shown by the answer to an interrogatory, and it was stated by appellee as a witness, that the load did not catch up.

1 Affirmed on rehearing, 80 N. E. 83. Rehearing denied. 81 N. E. 947. Transferred to Supreme Court, 82 N. E. 316.

on any floor, so that the verdict does not rest upon the averments to the contrary, which are contained in the third paragraph of complaint. It is insisted that the answers to interrogatories also show that the verdict does not rest upon the alleged negligent failure to provide sufficient safety devices. The interrogatory and answer referred to, in support of this position, state, in effect, that the elevator was furnished with safety appliances usually placed upon freight elevators. The condition of such appliances is not shown. They might be of the kind usually used on freight elevators and also be worn, defective, and inefficient as averred. Inferences cannot be drawn as against the general verdict and this interrogatory and the answer thereto would not form a basis for an inference of the character required, if it were otherwise permissible. The fact stated is an evidentiary one. It is permissible to show the customary manner of constructing an elevator. Sunney v. Holt (C. C.) 15 Fed. 880; Stover v. Millane, 89 Ill. App. 532; Tvedt v. Wheeler, 70 Minn. 161, 72 N. W. 1062; Boess v. Clausen (Sup.) 42 N. Y. Supp. 848. In determining whether the owner exercised due diligence in making the elevator reasonably safe, the usage of others is not the sole criterion, and it cannot be concluded, as matter of law, that due diligence has been employed because the elevator is such as is ordinarily used for like purposes. Lee v. Knapp, 55 Mo. App. 390; Id., 155 Mo. 610, 56 S. W. 458; McCormick v. Burandt, 136 Ill. 170, 26 N. E. 588; Webb on Elevators, § 15, p. 24; Id., § 65, p. 101; Elliott's Evidence, § 186.

This leaves for consideration the question as to whether there was evidence tending to show that said machinery was in a worn, weak, and unsafe condition, that appellant had failed in its duty to make reasonable inspection, or that there were no safety catches and appliances thereon sufficient to catch and hold the same. The elevator was constructed in 1896 with a capacity of 3000 pounds. It had been used until the 16th day of October, 1900. There was evidence tending to show that it had been habitually overloaded and was out of repair. The purpose of a safety clutch is to catch and hold the elevator in the event that the machinery, ordinarily employed in raising and lowering it, shall, for any reason, fail to perform its work. It must be presumed that such appliance, properly constructed and in good repair, will answer the purpose for which it is designed. The rule res ipsa loquitur is that the thing itself speaks. Whether it applies in a given case is said to "become a simple question of common sense." Whittaker's Smith on Negligence, p. 525 (422). The elevator, by the fall of which appellee was injured, was equipped with a safety clutch which it was the duty of appellant to keep in good condition. The fall of an elevator, of necessity, imperils life. Its char

acter, considered in connection with the law of gravitation, requires the owner to use care proportionate to the circumstances (one of which is the likelihood of injury) to prevent such fall. The fact that, when the very emergency arises upon which the device is brought into use, it wholly fails to act, "speaks for itself" and tends to establish negligence. The appellee had no duty to perform with regard to the safety clutch upon this machine. "Considering the very dangerous character of the machine under consideration, and the dreadful consequences which usually result from an accident, it is obvious that the rule of reasonable care already considered, which is satisfied with nothing less than a measure of care proportionate to the risk or the danger to be avoided, puts upon the master an exact and continuing duty of inspection." Thompson's Neg. vol. 4, 3902. In order that the doctrine of res ipsa loquitur be applicable in a given instance, it must appear that both the duty of inspection and use were in the control of the party charged at the time of the injury. Wigmore, Evidence, § 2509. See notes 1 and 2. The person injured was using the elevator when he was injured. The safety clutch, because of its peculiar function, was only used when an emergency arose, and such use was independent of any control of the person injured. Its operation depended upon agencies provided by appellant and the use made of it was his use. Such use would be no more personal to him had it involved the immediate action of his hands and brain. No voluntary or other action by appellee contributed to the failure of such device to work at the proper time, and it cannot be justly held that such failure was not admissible as a circumstance as tending to show negligence upon the part of appellant. Shafer v. Lacock, 168 Pa. 487, 32 Atl. 44, 29 L. R. A. 254; Howser v. Cumberland, etc. (Md.) 30 Atl. 906, 27 L. R. A. 154, 45 Am. St. Rep. 332; Barnowsky v. Helson (Mich.) 50 N. W. 989, 15 L. R. A. 33: Springer v. Ford, 189 Ill. 430, 59 N. E. 953, 52 L. R. A. 930, 82 Am. St. Rep. 464; Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630.

The circumstances are sufficient to justify the inference of negligence, and to support the verdict.

Judgment affirmed.

(39 Ind. A. 151)

BALTIMORE & O. S. R. CO. v. KLEESPIES. (No. 5,611.)1 (Appellate Court of Indiana, Division No. 2. June 19, 1906.)

1. APPEAL--PRESENTATION OF OBJECTIONS AT

TRIAL-INSTRUCTIONS-EXCEPTIONS.

Where a several exception to each of certain instructions was orally taken at the trial, as shown by an orderbook entry, the exception so reserved was sufficient, as provided by Act March 9, 1903. to authorize a review of the instructions on appeal, though the exception dis 1 Transfer denied.

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