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closed by the bill of exceptions embodying the gross was made from the bill of exceptions instructions appeared to be in gross.

imbodying the instructions, wherein it ap[Ed. Note.--For cases in point, see vol. 3,

pears that the exception was in gross. The Cent. Dig. Appeal and Error, § 2857.]

instructions of which appellant complains, of 2. NEGLIGENCE-ACTIONS-PROVINCE OF JURY -INVASION.

the series given on the motion of the PennIn an action for injuries to a passenger in

sylvania Company, are 7a, Tb, 70, 7e, and 7y. a collision between two trains at a crossing, an Instruction 7 is very lengthy, in the first part instructions reciting certain facts and charging

of which the court called the attention of the that, if the jury found that such facts existed, jury to several undisputed facts, and then they constituted negligence, was not objectionable as invading the province of the jury.

said: “In the light of these undisputed facts, [Ed. Note.-For cases in point, see vol. 37, | I instruct you as follows: (a) If the BaltiCent. Dig. Negligence, $$ 279, 358.]

more & Ohio train had passed over the cross3. RAILROADS-ACCIDENT TO TRAINS-COLLI ing in going northwardly on the Baltimore SIONS-ACTIONS-INSTRUCTIONS.

& Ohio tracks, and had gone a sufficient disIn an action for injuries to a passenger in a collision between two railroad trains at a

tance north of the crossing to allow a clearcrossing, the court charged that if, after the ance for the Pennsylvania train in making passage of the B. & 0. train over the crossing, use of the crossing; if, after said Baltimore the flagman so adjusted the signal as to display

& Ohio train had so gone said distance north a white light westwardly along the P. track, and the red light northwardly along the B.

of the crossing, said John Ledger, for the pur& 0. track, after which the B. & 0. train pose of allowing the Pennsylvania train to was backed into the P. train at the crossing, pass over the crossing, so adjusted said signal the B. & O. trainmen were guilty of negligence. The court further charged that if, after the

as to display the white light westwardly B. & 0. train had gone to a point of safety along the Pennsylvania track and the reď north of the crossing, it was backed to the light northwardly along the Baltimore & Ohio point of collision in violation of the signal

track, and therefore the operatives of said *not to cross" by the flagman displaying the red color against it, and that a collision oc

Baltimore & Ohio train caused the same curred in which plaintiff was injured without

to be backed in the direction of the crossing, his fault, plaintiff was entitled to recover and to such proximity of said crossing that against the B. & 0. Company, regardless of

it was brought in collision with the Pennwhether the P. Company was liable or not. Held, that the latter instruction construed with sylvania train while such Pennsylvania train the former was not erroneous as predicating was passing over the crossing in compliance plaintiff's right to recover on the sole fact of the

with said signal, then I instruct you that the signal being set against the B. & 0. train.

Baltimore & Ohio Company was not in the 4. SAME-PROVINCE OF JURY. Plaintiff was injured in a collision between

exercise of ordinary care, but was guilty of two trains at a crossing. The court charged negligence. (b) It will not do to say that the that the fact that the P. train stopped before operatives on the Baltimore & Ohio train reaching the crossing did not justify the opera. tives of the B. & O. train in backing to the

did not see the signal not to cross, if such point of collision in violation of a signal signal was, in fact, given. It was the duty against it, but that the statute made it the of the operatives of the train to know that duty of the operatives of the P. train so to the signal was not against them before the stop, and that the ston did not authorize the B. & 0. operatives to presume that the P.

train was backed to the point of collision, and train would remain standing while they were their failure to know this, if the signal was, making use of the crossing in violation of the

in fact, properly given, would amount to signal. Held, that such instruction was not erroneous as invading the province of the jury negligence. (d) Nor will it do to say that on the issue of negligence.

the operatives of the Baltimore & Ohio train On rehearing. Petition for rehearing over

backed the train to the point of collision ruled.

after seeing the signal not to cross, if they in

fact saw the same. For former opinion, see 76 N. E. 1015.

If they did this after

seeing the signal they were guilty of negliWILEY, J. Appellant has petitioned for a gence. (e) If you find from the evidence rehearing upon the ground that exceptions that, after the Baltimore & Ohio train had taken by it to a series of instructions tender gone to a point of safety north of the crossing, ed by the Pennsylvania Company—a defend the same was backed to the point of collision, ant below-and given by the court, were in

in violation of the signal ‘not to cross' given gross, and not separate and several, and in by John Leger by displaying the red color holding that as some of them, at least, were against the said Baltimore & Ohio train from correct statements of the law, we could not said system; and that a collision occurred be. consider those that appellant claims are er- 1 tween the Baltimore & Ohio train and the car roneous. A several exception to each of such in which plaintiff was carried as the result instructions was orally taken, as appears of said backing; and that as a result of said from an orderbook entry, and this being true collision, and without fault on plaintiff's part, the exception thus reserved is sufficient, un plaintiff suffered the injuries described in the der the act of March 9, 1903, to bring in re complaint, or some of them, then I instruct view on appeal, under a motion for a new that upon the issue joined between plaintiff trial, such instructions. Such orderbook en

and the Baltimore & Ohio Company your vertry having been inadvertently overlooked, ap dict should be for the plaintiff, and this will pellant is entitled to have such instructions be true without regard to the question as to considered. The statement in the original whether the Pennsylvania Company opinion that the exception was taken in guilty of negligence or not. (g) The fact

99

that the Pennsylvania train stopped between interurban street railroad, the jury, in estiIllinois avenue and Broadway, if such be the mating the damages, should not make deductions fact, did not justify the operatives of the

for benefits accruing to the landowner from the

construction and operation of the road. Baltimore & Ohio train in proceeding to back

[Ed. Note. For cases in point, see vol. 18, to the point of collision in violation of a red Cent. Dig. Eminent Domain, 88 378-393.] light signal displayed by the signal man, 2. SAME. if the same was so backed. The statute of In a proceeding under Burns' Ann. St. this state made it the duty of the operatives 1901, f. 5468a et seq., to condemn land for an

interurban street railroad, the damages to the of the Pennsylvania train to bring their

landowner should be assessed as in case of the train to a full stop before passing over the appropriation of land for the use of a commercial crossing, and the making of the statutory railroad. stop would not justify the operatives of the

Appeal from Circuit Court, Delaware Baltimore & Ohio train in concluding that

County; Joseph G. Lefler, Judge. the Pennsylvania train would remain stand

Proceedings by the Muncie, Hartford & ing while they were making use of the cross

Ft. Wayne Railway Company against Saming with the Baltimore & Ohio train in vio

uel S. Carrell to condemn land for a street lation of a red-light signal forbidding them

railroad. From a judgment awarding damto do so.

ages, defendant appeals. Reversed and re Those portions of the instruction designat

manded. ed "a" and "b" are objected to because they told the jury that the backing of appellant's

George H. Koons, for appellant. Cantwell train against the signal was, as a matter of

& Simmons, for appellee. law, negligence, and that this was an invasion of the province of the jury. The court simply

BLACK, J. The appellee instituted protold the jury that if certain designated facts

ceedings for the appropriation of a strip 40 existed, and established by the evidence, that

feet in width through agricultural lands of such facts would constitute negligence. Neg

the appellant, for the construction of the apligence is oftentimes a mixed question of law

pellee's “interurban street railroad," purand fact. It was the province of the jury

suant to the statute of March 11, 1901 to determine the facts, and the court left

(Burns' Ann. St. 1901, $ 5468a et seq.). that question to them, and simply said that

Among the instructions asked by the apif they found such facts to exist, they would

pellant which the court below refused to constitute negligence. We do not think this

give to the jury was the following: “(5) The was an invasion of the province of the jury,

court instructs the jury that, in estimating and taking the instruction as a whole, and

the damages, no deduction shall be made in connection with other instructions, it was

for any benefits that may arise or accrue to a correct declaration of the law. That part

the landowner by the location, construction, of the instruction designated “d” is not dis

and operation of the road.” Since the trial cussed, and is therefore waived. The objec of this cause, the matter involved in this tion to that part designated "e" is that it

instruction has been examined by this court, selects an isolated fact, to wit, that of the

and has been decided contrary to the ruling signal being against appellant, and told the

here questioned. See Indianapolis Northern jury that if they found such fact to exist,

Traction Co. v. Dunn (Ind. App.) 76 N. E. that their verdict should be for the appellee. 269; Indianapolis Northern Traction Co. v. Construing this part of the instruction in Ramer (Ind. App.) 76 N. E. 808. We do not connection with all of it, we do not think it find any reason for departing from the conerroneous.

clusion reached on this subject in those cases. Counsel say that the objections urged to The principles and rules for the assessthe other parts of the instruction are appli ment of damages in such cases are well ascable to that part designated “g," and, further, certained and explained in the decisions; that “because, in giving it, the court under and other questions suggested by counsel took to charge, as a matter of law, the legal may, on another trial, present no difficulty, effect of certain acts which should have been being approached with the understanding left to the determination of the jury upon a

that it is the intention of the Legislature consideration of all the evidence and circum that in such cases damages to the landowner stances in the case." We do not think the should be assessed as in case of the approinstruction is subject to the objections urged. priation of land for the use of a commercial The petition for a hearing is overruled. railroad company.

Judgment reversed. Cause remanded for (38 Ind. App. 700)

a new trial. CARRELL V. MUNCIE, H. & FT. W. RY. CO. (No. 5,544.)

(38 Ind. App. 342) (Appellate Court of Indiana, Division No. 1. EVANSVILLE GAS & ELECTRIC LIGHT June 20, 1906.)

CO. v. RALEY. (No. 5,379.) 1. EMINENT DOMAIN

DOMAIN-TAKING LAND FOB STREET RAILROAD-DAMAGES-DEDUCTIONS (Appellate Court of Indiana. June 20, 1906.) FOR BENEFITS. In a proceeding under Burns' Ann. St.

On rehearing. Overruled. 1901, § 5468a et seq., to condemn land for an For former opinion, see 76 N. E. 548.

PER .

CURIAM. Petition for rehearing court cannot say that the fixing of the spur overruled.

in the pole at that time gave or should have

given appellee notice of the rotten condition ROBY, J. (dissenting). The negligence thereof. The appellee was not in the best charged in the complaint must be taken as position to ascertain the condition of the established by the verdict, and the sufficiency | pole and wires. The rules regulating the of the facts to support it in that behalf is not respective duties of employer and employé questioned. It appears from the opinion that have been so many times declared that it the defects complained of, both of which seems superfluous to repeat them. “The apcontributed to the injury and both of which pellee was not required to make a special were caused by the negligence of a single examination or careful investigation to asdefendant, were latent and concealed ones. certain whether the bent had been negligentIt is entirely well established that the em ly or carelessly raised, or whether it was ployé is not required to search for latent and then in a dangerous and unsafe condition, beconcealed dangers of which he has neither fore obeying the command of the master. actual nor constructive notice. Salem Stone When directed to do the act in the perform& Lime Co. v. Tepps, 10 Ind. App. 516, 519, ance of which he was injured he had the 38 N. E. 229. It is also established that an right to assume that the street commissioner, employé assumes risks naturally and ordi. with his superior knowledge of the facts, narily incident to the service in which he would not expose him to unnecessary danengages. Wortman v. Minich et al., 28 Ind. ger.” City of Lebanon v. McCoy, 12 Ind. App. App. 31, 62 N. E. 85; Lake Shore, etc., Co. 500, 40 N. E. 700; 0. & M. Ry. Co. v. Pearcy, V. McCormick, 74 Ind. 440, 445. Danger 123 Ind. 202, 27 N. E. 479. "If an employé, caused by the master's negligence is not a reposing confidence, as he has a right to, in necessary incident to the service, and the the prudence and caution of the employer, risk arising therefrom is not an assumed in relies upon the adequacy of the implements cidental one. Barley V. Southern Ind. Ry. put into his hands to work with and upon Co., 30 Ind. App. 406, 412, 66 N. E. 72. "The the safety of the place assigned him to work, risks a servant assumes on entering upon and sustains injury in consequence of the the employment of a master are those only failure and neglect of the employer to diswhich occur after the due performance by close latent defects or perils, which the latter the employer of those duties which the law knew, or which he should have known by

, Sons, 101 N. Y. 547, 5 N. E. 449; Stringhamployd is entitled to remuneration for his v. Stewart, 100 N. Y. 516, 3 N. E. 575; Pant loss." Bradbury V. Goodwin, 108 Ind. 286, zar v. Tillie Foster Imp. Co., 99 N. Y. 368, 2 9 N. E. 302; Krueger v. Louisville, etc., R. Co., N. E. 24. The employé also assumes risks 111 Ind. 51, 11 N. E. 957, and cases cited; arising from open and obvious defects. The Mitchell V. Robinson, 80 Ind. 281, 41 Am. danger arising therefrom must be either Rep. 812; Boyce v. Fitzpatrick, 80 Ind. actually or constructively known to him, and 526; Atlas Engine Works v. Randall, 100 he must also be charged with actual or con Ind. 293, 50 Am. Rep. 798; Indiana Car Co. structive appreciation of the danger out of v. Parker, 100 Ind. 181; Louisville, etc., R. which the assumed risk arises. Avery v. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Nordyke & Marmon Co., 34 Ind. App. 552, 70 Pittsburg, etc., R. Co. v. Adams, 105 Ind. N. E. 888. Nothing short of this can form 151, 5 N. E. 187; Pennsylvania Co. v. Whitthe basis of an implied contract upon which comb, 111 Ind. 212, 12 N. E. 380; Stringham the doctrine of assumed risk depends in this v. Stewart, 100 N. Y. 516, 3 N. E. 575; Pantstate. Wortman v. Minich et al., supra. zar v. Tilly, etc., Co., 99 N. Y. 368, 2 N. E.

It is said in the opinion that "appellee was 24; Bean v. Oceanic Steam Nav. Co. (C. C.) in the best position to ascertain the condi 24 Fed. 124. "It is true that the master is tion of the wires and the pole, but no super bound to use ordinary care and diligence in ficial inspection would have disclosed the providing reasonably safe and suitable madefective condition of the pole.” This state chinery and appliances for his servants, and ment is inaccurate as to facts. The appellee is liable for injuries resulting from his failhad never seen the pole until a moment be ure to perform this duty. He is also chargefore he climbed it. He did not know how able with notice of the natural tendency long it had been in place, or how long the of machinery and implements to wear out insulation had been upon the wires. He and decay with use and age, and is therefore climbed the pole by means of a ladder. It required to exercise an active and continudoes not appear that he ever sank a spur in ing supervision and vigilance to maintain it until he did so to do the work in the per them in a reasonably safe condition. A servformance of which he was injured. Neither ant may rightfully act upon the presumpdoes it appear that there was anything in tion that the master has performed his duty the resistance made by the pole to the set in supplying proper machinery and appli. tling of the spur which attracted his atten ances, unless he has notice otherwise, or tion to its condition. The general verdict facts are patent and come within the reasonoffers all inferences for appellee, and this able range of his observation which would

excite the apprehension of a reasonably cautious person and put him upon inquiry. * * While a servant may have an equal opportunity, he is not bound to make a critical examination of the condition of an implement or item of machinery before using it, to ascertain if it contained any latent defects, unless so required by the terms of his employment." Louisville, etc., Co. v. Berry, 2 Ind. App. 430, 28 N. E. 714; Indiana Car Co. v. Parker, supra; Bradbury v. Goodwin, supra.

In the statement of the opinion that "the exercise of ordinary care upon the part of appellant would have disclosed no more than the exercise of the same degree of care by the appellee," the court usurps the functions of the jury, forgetting that an appellate tribunal is not at liberty to weigh evidence and does not approach the issue as the trial court does, but is bound to take the facts as they have been determined. The opinion also ignores the superior knowledge of appellant and appellee's actual ignorance of the conditions by reason of which he was injured. The character of the defects complained of furnishes the foundation for the conclusion reached by the jury and prevents this court from justly saying, as a matter of law, that it was his duty to have known of the danger to which he was subjected. The master's duty is to furnishi a safe place and safe appliances. It requires appellant to take notice of the tendency of wood to decay, and of the effect of exposure upon the perishable material with which it chose to insulate the wires in question. It knew the time during which such process had been going on, and was bound to take notice of them and duly and reasonably guard against them. Appellee was under no duty, as before stated, to search for latent and concealed defects, and had no information tending to put him upon inquiry. He protected himself by means of a safety belt from falling to the ground. A slip, caused by the defective pole, was productive of a painful injury; he thereby being brought in contact with a wire negligently allowed to remain without sufficient insulation. Both causes which contributed to his injury were created by the negligence of a single defendant, and the finding of the fact against such defendant by the jury ought, so far as the question of proximate cause is concerned, to be reasonably safe from the logic of this court. Appellee did not inspect or examine either the pole or insulation upon the wires. He did not known that there was any defect in either, nor how long the pole had been in use, nor how long the insulating material had been upon the wires. The statement in the opinion “that appellee admits that the foreman told him, before he began the work, that he should work the wires as if they were hot," is not an ingenuous way of stating that appellee's attorney asked him upon his original examination the following ques

tion: “Q. Now, what did he say to you, or what was said to you there, if anything, about working the wires? A. Why, Mr. Fisher said to work those wires as if they were hot.” It is not suggested by appellant that appellee did not comply with the order thus given. No detail of his procedure is criticised. He unfastened the outside wire and took hold of it with his right hand to push it off of the cross-arm. The wires made an angle at this pole, and considerable force was required to remove it. While exerting such force, the spur on his left foot tore out of the pole, causing him to lose his balance and bringing his left hand in contact with a second wire, thereby forming a short circuit and instantly depriving him of consciousness. Three fingers were burned off of one hand and two off of the other, and he was otherwise injured.

Appellant's negligence formed an element in the injury complained of, and takes the occurrence out of the category of mere accidents. An accident, in the sense in which the term is used, is an occurrence to which human effort does not contribute. “A pure accident, where there is an absence of negligence, will not supply a cause of action; but, where the accident is attributable to the negligence of the defendant, it is otherwise." Nave v. Flack, 90 Ind. 205, 210, 46 Am. Rep. 205. I am convinced that a decision which relieves owners of electric light and other poles of a similar nature from all responsibility in cases of this sort ought not to be made, and that the petition for a rehearing herein sliould be sustained.

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(38 Ind. A. 339) RICHARDSON V. STEPHENSON et al.

(No. 5,908.) (Appellate Court of Indiana, Division No. 2.

June 20, 1906.) 1. NEW TRIAL_STATUTORY NEW TRIAL JUDGMENT-VACATION.

Where, in a suit to quiet title, plaintiff was granted a statutory new trial, it was the duty of the court to vacate the original judgment of record.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, $ 364.] 2. APPEAL -- PLEADINGS - DEFECTS-AMENDMENT ON APPEAL.

Where a defect in a complaint sought to be taken advantage of by demurrer was one which might have been cured by amendment in the trial court, it would be deemed to have been so cured by amendment on appeal, as provided by Burns' Ann. St. 1901, § 670.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $8 3621, 3622.] 3. SAME-ASSIGNMENTS OF ERROR.

Where a demurrer was directed to plaintiff's complaint, and was overruled, an assignment of error challenging the action of the court in overruling the demurrer to the first paragraph of the "amended complaint” was un. available. 4. PLEADING-ANSWER-DEMURRER.

Where all the facts averred in a special paragraph of the answer were admissible under the general denial pleaded, the sustaining of the demurrer to such paragraph was not error.

5 NEW TRIAL-MOTION-FILING-TIME.

Under a statute authorizing the filing of a motion for a new trial at any time during the term or on the first day of the succeeding term, if the verdict or decision is rendered on the last day of any term, a motion for a new trial, filed in vacation in a case in which the judgment was rendered on April 28th at a term which did not close until the 30th, was too late.

Appeal from Circuit Court, Perry County ; C. W. Cook, Judge. Action by James A. Stephenson, Sr., and

, to quiet title and for partition. A judgment was rendered in favor of defendants, quieting title in them, and within a year plaintiff, Stephenson, filed a bond for a statutory new trial. From a judgment for plaintiff, defendants appeal. Affirmed.

John H. Weathers and Philip Zoercher, for appellants. John W. Ewing and Sol. H. Esary, for appellee.

directed to the plaintiff's complaint, for which reason the assignment does not present a question. The same is true of the dem urrer to the second paragraph of complaint and the fourth assignment of error. There was no error in sustaining appellee's demurrer to appellant's third paragraph of answer, all the facts therein averred being admissible under the general denial. Watson v. Lecklider, 147 Ind. 395, 45 N. E. 72.

The appellant's motion for a new trial was filed June 29th, in vacation. The judgment appealed from was rendered on April 28th and the term closed on April 30th. The statute provides that a motion may be made at any time during the term at which the verdict or decision is rendered, and if such verdict or decision is rendered on the last day of any term, that a motion may be filed on the first day of the next term of court. The judgment appealed from was not rendered on the last day of the term, and the motion was not, therefore, made in time. Dugdale v. Doney, 30 Ind. App. 240, 65 N. E. 934.

A review of the evidence leads to the belief that ine conclusion reached was the correct one upon the evidence

Judgment affirmed.

ROBY, J. This action was brought by appellees to quiet title to a strip of ground claimed by virtue of a division made by the owners of a certain tract of land 20 years prior to its commencement. The action was instituted against appellant and her husband. The original complaint was in two paragraphs, one to quiet title and the other for partition. The defendants filed an answer to both paragraphs, setting up ownership of the land in dispute and asking to have their title thereto quieted. A trial was bad which resulted in a finding and judgment for appellant and her husband. Within a year from date of judgment, appellee filed a bond for a new trial, as of right under the statute, which new trial, over the objection of appellant, was had. Pending the second trial her husband and codefendant died, and the case proceeded against the appellant upon the amended complaint, upon which issues were formed and a trial had, resulting in a finding and judgment for appellee, from which judgment this appeal is taken.

No record entry was made vacating the prior judgment. The court had, however, no discretion but to grant a new trial and vacate the judgment, upon the steps set out by statute having been taken. Anderson V. Anderson, 128 Ind. 254, 27 N. E. 724. It appearing that a new trial was in fact granted and had, a formal record thereof should have been made to conform to the fact, and the circuit court is therefore directed to make such record. Harris v. Curtis, 34 Ind. App. 438, 440, 72 N. E. 1102; Merom Gravel Road Co. v. Pearson, 33 Ind. App. 174, 69 N. E. 694, 71 N. E. 54.

The third assignment challenges the action of the court on overruling appellee's demurrer to the first paragraph of amended complaint. The defect pointed out is the one which might have been amended by the court below, and will therefore be deemed to be amended in this court. Section 670, Burns' Ann. St. 1901. The demurrer was

78 N.E.-17

(39 Ind. App. 42) GOODING V. STATE ex rel. McGILL. (No.

5,641.) (Appellate Court of Indiana, Division No. 1.

June 21, 1906.) 1. BASTARDY-NATURE OF PROCECUTION.

A bastardy proceeding is a civil action. [Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bastards, $ 3512.) 2. SAME-FORM OF PROCEEDINGS.

Bastardy proceedings must originate before a justice of the peace, and be prosecuted in the name of the state for the benefit of the illegitimate child.

[Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bastards, $$ 35, 79, 84.] 3. SAME - PRIOR JUDGMENT - EFFECT - PROCEEDINGS FRAUDULENTLY INSTITUTED.

Burns' Ann. St. 1901, $ 1006, provides that, in bastardy proceedings, prosecuting witness, if she be an adult, may dismiss the suit at any time by entering an admission that satisfactory provision has been made for the maintenance of the child. A bastardy proceeding was instituted at the instance of the putative father, without the knowledge of the mother or the prosecuting attorney. Afterward, by false representations that she was merely signing a receipt for a small sum of money advanced her by the father, the mother was induced to sign an acknowledgement that provision had been made for the child, and the proceeding was dismissed. Held, that the state was not really a party to the proceedings, so that the judgment was not rendered in an adversary proceeding, and was not a bar to another proceeding.

[Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bastards, 88 45–57.] 4. SAME-RETURN OF MONEY PAID.

The payment by defendant was a voluntary one, and it was not necessary to return or offer to return it before commencing another proceed. ing.

* Rehearing denied. Transfer to Supreme Court denied.

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