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said elevator. Prior to the time on said day that appellant was injured, many of the employés of appellant rode upon said elevator, and furniture and other freight owned by appellant had been transported on said elevator on said day in charge of appellee, who rode on said elevator with said freight. The president and secretary of appellee corporation rode on said elevator on said day. pellee and its officers did not know that any of its employés other than Kaiser were riding upon said elevator before and at the time of the accident in which appellant was injured, nor had appellee instructed or authorized Kaiser to invite its employés to ride on said elevator. Prior to appellant's injury, appellee did not consent that appellant and other men in the factory other than Kaiser should ride upon said elevator, nor did any one except Kaiser have any authority or permission to ride thereon. And appellee did not know before appellant was injured that freight was being carried upon said elevator, nor did appellee before said injury direct or consent by any of its officers to the use of said elevator for carrying freight. The falling of said elevator was caused solely by the slipping of the worm pinion off of its shaft, and said worm gearing was manufactured and put together by the Ft. Wayne Iron Works. Said worm pinion was examined by said Kaiser before he put it up in appellee's factory, for the purpose of seeing wheth er it was properly put together; and he found and concluded that the worm pinion and shaft were properly keyed and put together before he used them in the building of said elevator; and said Kaiser was competent to examine and know whether said worm pinion and shaft were properly put together. If suitable brakes, dogs, clamps, or other safety appliances had been attached to and used in connection with said elevator, the same would not have fallen when said pinion slipped off of its shaft; but said elevator was not unsafe on account of the absence of proper and sufficient safety appliances. The openings in the floor of appellee's factory through which said elevator was operated were also used by appellee for taking up and down, with a rope and tackle, long pieces of furniture, such as bars and counters, and materials which could not be carried on said elevator; and the use of an inclosed elevator or an inclosed elevator shaft at said place would have prevented the taking up and down of such pieces of furniture through said openings with such block and tackle.

It is alleged in the complaint that the platform of the elevator was about six feet wide and eight feet long, and that the same was constructed to carry freight and employés of appellee. The theory of the complaint is thus stated by appellant: "The gist of the action and the theory of the complaint, as shown by its averments, was that the negligence of the appellee, which resulted in the infliction of the injuries complained of, con

sisted of the negligent failure and omission of appellee to attach to the elevator safety appliances such as are usually and generally used in connection with the operation of elevators, and in negligently failing to place, around the platform of the elevator, railings or guards, so as to prevent persons riding on the elevator from falling therefrom by reason of the absence of such railings or guards, in case the machinery by which the elevator was moved should become disabled from any cause, and the elevator should fall."

The jury found, by the answers to interrogatories, that said elevator was constructed and intended for the transportation of freight only, and not for employés. The rule is that owners are under no legal obligation to put safety appliances upon elevators not intended to carry passengers. Hall v. Murdock (Mich.) 72 N. W. 150; Kern v. Refining Co., 125 N. Y. 50, 25 N. E. 1071; Hoehmann v. Engraving Co., 4 Misc. Rep. 160, 23 N. Y. Supp. 787; Webb, Pass. & Freight Elevators, p. 22, § 17; Id. p. 31, § 23. Nor, as a general rule, does proper care require that a freight elevator be inclosed or sheathed. Hoehmann v. Engraving Co., supra; Boehm v. Mace (Com. Pl.) 18 N. Y. Supp. 106; Webb, Pass. & Freight Elevators, $ 17.

It is also clear from the answers to interrogatories that a mere inspection of the elevator showed that it was a freight, and not a passenger, elevator, and that appellant, when he entered upon the elevator, and when he was injured, knew that the same was intended for freight only, and not for passengers. That employés had used the elevator on the first day it was operated, and before appellant's injury on said day, to ride up and down on, without the knowledge or consent of appellee, does not change the fact that it was made to carry freight-only, as found by the jury. Hoehmann v. Engraving Co., 4 Misc. Rep. 162, 23 N. Y. Supp. 787; Morris v. Brown, 111 N. Y. 318, 18 N. E. 722.

The jury also found that appellant, by the exercise of ordinary care, would have known that the elevator was not provided with such safety appliances as dogs, clutches, or brakes. Under such circumstances, even if appellant rode upon the elevator at the invitation of appellee, he assumed the risk incident to carriage upon it. Hall v. Murdock, supra; Shields v. Robins, 3 App. Div. 582, 38 N. Y. Supp. 214. When appellant went upon the freight elevator, even if Kaiser was authorized by appellee to carry him, he took it as he found it,-open platform, without sides or rails, with notice that it was a freight elevator, and equipped as such. As was said in Hall v. Murdock, supra: "When one knows that the elevator is designed for freight alone, he must be held to know that it is not equipped with the same regard to safety that a passenger elevator is or should be." The jury found, however, that appellee

did not invite appellant to ride upon the elevator, or authorize any one to invite him to do so, nor did appellee consent that any one ride thereon except Kaiser, but that appellant rode upon the elevator at the invitation of a co-employé, solely for his own convenience and pleasure, without the knowledge or consent of appellee, and that appellee had provided safe and suitable stairways to go from one floor of the factory to the other, and that appellant had frequently used the same, and was familiar therewith, and that no duty required appellant to go upon said elevator. In handling the elevator, Kaiser, so far as the appellant was concerned, under the facts found, was only a fellow servant; and it is evident that he had no authority to invite appellant to ride upon the elevator, and that when he chose, at the invitation of a co-employé, to ride on the elevator, instead of going up the stairway provided for the use of employés, he did so at his own risk. Hoehmann v. Engraving Co., 4 Misc. Rep. 166, 23 N. Y. Supp. 787; Morris v. Brown, 111 N. Y. 326, 327, 18 N. E. 722; Shields v. Robins, supra; 1 Shear. & R. Neg. (5th Ed.) § 190.

Under the facts found, appellant knew that the elevator was to carry freight only. Notice to him of that fact was not therefore necessary. Before he can claim that he rode upon the elevator by permission of appellee, express or implied, he must either prove that Kaiser was authorized by appellee to carry him upon the elevator, or that appellee was accustomed to carry its employés upon said elevator. No such facts were found by the jury, but, on the contrary, they expressly found that appellee never authorized any one to carry him, or any other employé, on the elevator, and that appellee had no knowledge that any employé or freight was being carried on the same. The finding does not show any custom to carry employés on said elevator, so as to be binding on appellee. The finding only shows that on the first day the elevator was operated, and while the same was being tested and experimented with by the employé who constructed it, a number of employés and some freight were carried upon the elevator, without the knowledge or consent of appellee, and that two of the officers of appellee rode thereon. This falls far short of showing any custom of appellee to carry its employés on said elevator, which can only be established, if at all, by showing that appellee consented to such use, or that it was so used with the knowledge of appellee under such circumstances as that an assent to such use might se implied. Even if the finding showed that the freight elevator was used by employés in going to and from their work, with the knowledge and consent of appellee, the degree of care required of appellee would be that of employer to employé, which is ordinary care. McDonough v. Lanpher, 55 Minn. 501, 57 N. W. 152; Shear. & R. Neg. (5th Ed.)

§ 190; O'Brien v. Steel Co., 100 Mo. 182, 13 S. W. 402.

The facts found do not show that appellee was guilty of the acts of negligence alleged in the complaint, but, on the contrary, they show that it was not guilty of the acts of negligence charged. It is expressly found by the jury that the elevator was constructed to carry freight only, and not employés; and that the employé Kaiser, directed to construct said elevator, and who was authorized to, and did, determine the kind of elevator and the manner of its construction, and who constructed the same, was a reasonably competent man to perform that work; and that the worm gearing by which said elevator was operated was used by some of the best manufacturers of elevators, and was a reasonably proper appliance to be used in the construction and operation of an elevator; and that a worm gearing is in and of itself a sufficient safety appliance, if properly fastened on the shaft, and was the only appliance that should have been used; and that the wheels, pulleys, and the said worm gearing and shaft used in the construction of said elevator were manufactured by, and the said worm gearing put together by, the Ft. Wayne Iron Works, a competent and reputable manufacturer of such materials; and that said elevator was not unsafe on account of the absence of proper and sufficient safety appliances. It is found that the falling of said elevator was caused by the slipping of the worm pinion off its shaft; but it is also found that said worm pinion was examined by said Kaiser before he put it in appellee's factory, for the purpose of seeing whether the shaft and worm pinion were properly put together, and he found that they were properly keyed and put together, before he used them in the building of said elevator; that said Kaiser was competent to examine and know whether said worm pinion and shaft were properly put together; that the openings in the floor through which said elevator was operated were also used by appellee for the taking up and down, with a block and tackle, of long pieces of furniture, such as bars and counters, and materials which could not be carried on said elevator, and the use of an inclosed elevator or an inclosed elevator shaft would have prevented the taking up and down of such pieces of furniture through said openings with such block and tackle. It is true, as between appellee and its employés, if any, whose duties authorized or required them to use said elevator, Kaiser, although an employé, was, in the construction of said elevator, a vice principal, and represented the master, and his negligence, if any, in the construction of said elevator, was the negligence of appellee. Railway Co. v. Snyder, 140 Ind. 647, 39 N. E. 912. The findings do not show that Kaiser had any notice or knowledge of any defect in the construction of the elevator, or that it was

unsafe. On the contrary, they show that he was a competent person to construct and inspect the same, and that on examination he found the worm pinion and shaft properly keyed and put together.

It is only where the answers to interrogatories are absolutely irreconcilable with the general verdict that the court is authorized to sustain a motion for a judgment on such answers notwithstanding the general verdict. Town of Poseyville v. Lewis, 126 Ind. 80, 81, 25 N. E. 593; Gates v. Scott, 123 Ind. 459, 461, 24 N. E. 257, and cases cited; Railroad Co. v. Clifford, 113 Ind. 460, 468, 15 N. E. 524. The answers to the interrogatories are not in conflict with the general verdict, but are consistent therewith; neither do they sustain the allegations of the complaint. But if there were no general verdict, and the facts found were treated as à special verdict, the judgment thereon should be for the appellee. Moreover, appellant's motion for a judgment in his favor on the answers to the interrogatories notwithstanding the general verdict was properly overruled for the further reason that there was not in said answers any assessment of damages, nor were there any facts found from which the court could, as a matter of law, make such assessment.

It is next insisted that the court erred in overruling the motion for a new trial. The first and second causes for a new trial are that the verdict is not sustained by sufficient evidence, and that the same is contrary to the evidence. These causes for a new trial are not argued by counsel for appellant in their brief, and they concede that there is such conflict in the evidence as, under the rule in this state, this court will not weigh the evidence. Lawrence v. Van Buskirk, 140 Ind. 481, 483, 40 N. E. 54; Hoskinson v. Cavender, 143 Ind. 1, 2, 42 N. E. 358; Steele v. Empsom, 142 Ind. 397, 405, 41 N. E. 822.

The next cause assigned for a new trial is that the answers to special interrogatories 9, 13, 14, 18, and 34 are not sustained by sufficient evidence. The answers to these interrogatories are not inconsistent with the general verdict, but support it. It is only when the answers to the interrogatories are so inconsistent with the general verdict that judgment should be rendered thereon notwithstanding the general verdict that it is proper to assign as a cause for a new trial that the answers to such interrogatories are not sustained by the evidence, or that they are contrary to law. In such case the general verdict is disregarded, and judgment rendered on the answers to the interrogatories. The answers to the interrogatories in such a case are, in effect, the verdict upon which the judgment must be rendered. In this case, however, the general verdict was in favor of the defendant, and the answers to the interrogatories mentioned in the motion for a new trial were not inconsistent therewith, and no judgment could be ren50 N.E.-56

dered thereon. Said cause for a new trial, therefore, presents no question for our decision. Staser v. Hogan, 120 Ind. 207, 228, 21 N. E. 911, and 22 N. E. 990; Railroad Co. v. Kennington, 123 Ind. 409, 410, 24 N. E. 137; Railroad Co. v. Baltz, 141 Ind. 661, 36 N. E. 414, and 38 N. E. 402, is cited to support the contention that a new trial will be granted when the answers to interrogatories are not sustained by the evidence; but in such case the cause assigned for a new trial should be, not that the answers to the interrogatories are not sustained by the evidence, but that the verdict is not sustained by the evidence. Said cause for a new trial, therefore, presents no question for our decision. There was evidence,.however, sustaining the answers to said interrogatories; and even if the said cause for a new trial presented any question, under the well-settled rule, we could not review and weigh the evidence.

The court permitted one Seibold, a witness for appellee, to testify that the elevator was so constructed that it could be worked by a person standing upon any of the floors of the building by means of ropes. This witness testified as to the manner of operating the elevator after the injury of appellant, and that the means and appliances for operating the elevator were the same before the injury as afterwards. Appellant assigns this action of the court as cause for a new trial. The only objection made to the introduction of this evidence was that appellant "objected to any testimony showing the mode of operating the elevator since the accident occurred." No reason was stated or pointed out to the trial court why said evidence should not be admitted. The rule is that, unless objections to the evidence are specific, they are insufficient. Fowler v. Wallace, 131 Ind. 347, 348, 31 N. E. 53, and cases cited; Stanley v. Holliday, 130 Ind. 464, 467, 30 N. E. 634; Litten v. Wright School Tp., 127 Ind. 81, 83, 26 N. E. 567, and cases cited.

One Crawford, a witness for appellee, testified that, before the injury to appellant, the person sending freight up and down in the elevator remained upon the floor from which said freight was sent, and operated the elevator. The witness then testified that, after the injury, the freight was raised or lowered in the elevator, and the person raising or lowering the same remained on the floor where the elevator was loaded, and operated the same. To this evidence appellant objected, on the ground that the same was self-serving in its nature. The evidence showed that the elevator was the same after the accident as before; that the same had not been changed in any way. As to its manner of being operated, it was proper to prove the manner of construction of said elevator, and how it was and could be operated before and at the time of the accident. And when it was shown that it had not been changed in any way, but was the same after

the accident as before, evidence of its construction and how it could be operated after the accident was properly admitted to prove its condition, construction, and how it could be operated before the accident. It is a common thing, when the construction or operation of a machine or machinery, and whether the same is defective or otherwise, is in issue, to permit proof of its construction and operation, etc., after an injury, upon proof that there has been no change made in the same since the injury.

The court did not err in refusing to permit appellant to prove by a witness that, after appellant received the injury complained of, the worm gearing connected with the elevator was fastened differently, by being riveted on the shaft to which it was attached. Board v. Pearson, 129 Ind. 456, 457, 28 N. E. 1120; Railroad Co. v. Clem, 123 Ind. 15, 17, 23 N. E. 965.

Charles Pape, president of the appellee, while on the stand as a witness for appellee, testified that he and one Kaiser, an employé who had built elevators, went to look at an elevator in the City Carriage Works. Appellee then propounded this question to the witness: "After you saw the elevator at the carriage works, what did Kaiser say about it, if anything?" To this question appellant objected, on the ground that "it is improper and suggestive; that it suggests to the witness that Mr. Kaiser did say something to him after that, the witness not having testified that Mr. Kaiser did say anything." This objection was overruled, and the witness answered the question. The question was not suggestive, but only required the witness to state what Mr. Kaiser said, if anything. The question, even if improper, was not open to the objection made, and the court did not err in overruling the same. Objections were made to other questions propounded to this witness, but they were made after the witness had answered the questions, and therefore came too late.

Appellant next contends that the court erred in permitting G. P. Ditenhaven, a witness for appellee, to testify, over appellant's objection, that if there was a worm gearing on his elevator, or on an elevator constructed like it, he would consider it a safe appliance for hauling freight. Appellant objected to the question which elicited the evidence, on the grounds "that the witness has not shown himself qualified to speak, also that it does not appear that the witness has sufficient knowledge and information relative to elevators to express an opinion upon it, and that it is incompetent to compare the elevator in this action with the one owned by the witness, for the purpose of determining its safety as contrasted or otherwise used." It is true that it is error to permit one who is not an expert to express an opinion upon a question with relation to which all the facts may be placed before the jury; yet it is permissible for a witness to give

such opinion when the facts cannot be placed before the jury. Brunker v. Cummins, 133 Ind. 443, 448, 32 N. E. 732, and cases cited; Bennett v. Meehan, 83 Ind. 566, and cases cited; Loshbaugh v. Birdsell, 90 Ind. 466, 467; Railway Co. v. Hale, 93 Ind. 79, 81, 82; Turnpike Co. v. Andrews, 102 Ind. 138, 142-144, 1 N. E. 364, and cases cited; Clark Civil Tp. v. Brookshire, 114 Ind. 437, 444, 445, 16 N. E. 132. This witness had testified without objection that he had observed worm gearings and their operation on elevators, and that he considered a worm gearing a safe appliance to prevent an elevator from falling; but the construction of the worm gearing and the elevator, and the manner of attaching the same to the elevators, and the manner of operating the same, cannot be described to a jury as it appeared to the witness. In such case, the witness, not an expert, may express his opinion. It is clear that the objection that the witness was not an expert was properly overruled. The remainder of the objection seems to be meaningless, or at least indefinite and uncertain. The evidence, even if erroneously admitted, however, was harmless, for the reason that ine theory of appellant's case was that the elevator in this case was for freight and employés both, while the testimony of the witness was only that if there was a worm gearing on his elevator (which carried freight only), or one constructed like his, he would consider it safe. Under the issues, such evidence could not have harmed the appellant.

During the progress of the trial, appellee called a witness, and propounded to him questions to which appellant objected; and, the same being sustained, counsel for appellee stated what they proposed to prove by said witness. Appellant objected to the statement being made in the presence and hearing of the jury, which was overruled by the court. Counsel for appellee called two other witnesses, and offered to prove the same thing by them. Appellant objected to the said offer to prove the same fact being repeated in the presence and hearing of the jury. Whether the statement of counsel as to what a witness will testify in answer to a question to which an objection has been sustained shall be made in the presence of the jury rests in the sound discretion of the trial court; and, unless it is clearly shown by the record that such discretion has been abused, the decision of the trial court upon such question will not be reversed. No abuse of that discretion is shown by the record in this case. When an offer to prove is once fully made, and the question sought to be saved is fully presented, there is no necessity to repeat the offer to prove, and a repetition of the offer is at least subject to censure, whether a ground for reversal or not. The trial court was able to observe the effect, if any, of such offer to prove; and, unless the contrary is shown by the record,

the presumption is that no injurious effect followed such offer to prove, or, if it did, that the same was properly corrected by the court. Vannoy v. Klein, 122 Ind. 416, 419, 420, 23 N. E. 526; Elliott, App. Proc. §§ 701, 703. See Pfaffenback v. Railway Co., 142 Ind. 246, 249, 41 N. E. 530; Miller v. Dill (Ind. Sup.) 49 N. E. 272, 275.

Complaint is made by appellant in regard to certain instructions because the jury were informed that "the burden is upon the appellant to prove the material allegations of the complaint, and he cannot recover unless he has made such proof." It is true, as argued by appellant, that if averments in a complaint, or an answer in confession and avoidance, or any one of them, are established by a fair preponderance of the evidence in a case, it is sufficient, whether the party having the burden of proof as to such averments or his adversary introduced such evidence. But there is no presumption that any party to a cause has given any evidence to establish his adversary's case or defense. Therefore, unless the record in this case shows affirmatively that appellee introduced evidence tending to sustain some one or more of the averments of appellant's complaint, said instruction was not erroneous. It is not claimed by appellant that any such evidence was given. In any event, it would seem, however, that the use of the words complained of was a mere verbal inaccuracy, which could not have misled the jury or harmed appellant.

We have examined the other instructions of which complaint is made by appellant, and do not think them open to the objections urged, although they may contain some verbal inaccuracies, but they are not such as would be misleading. But even if said instructions were erroneous, as urged, appellant has no grounds for complaint, for the reason that the answers of the jury to the interrogatories show that the instructions given did not injure him. Under said facts, appellant would not, in any event, be entitled to a judgment in his favor. The instructions, therefore, even if erroneous, did not harm appellant, unless the answers to the interrogatories were influenced by said instructions. Ricketts v. Harvey, 106 Ind. 564, 6 N. E. 325; Cline v. Lindsey, 110 Ind. 337, 348, 11 N. E. 441; Moore v. Lynn, 79 Ind. 299, 301; Elliott, App. Proc. § 642. Said instructions, however, were general instructions as to the law, and could in no way influence the answers to interrogatories. Finding no available error in the record, the judgment is affirmed.

ROBINSON et al. v. HATHAWAY et al. (Supreme Court of Indiana. June 16, 1898.) APPEAL-WAIVER-PARENT AND CHILD-EMANCI

PATION.

1. Failure on appeal to discuss an assigned error waives it.

2. When 11 years old, his mother being dead, a boy was placed by his father with G., with the request that she care for him until his father was settled again. The father remarried, but did not come after the son, and he remained with G., who supported him for 13 years. The father did not agree to pay for his support, and G. looked to the son to pay therefor, which he agreed to do. On attaining his majority, he deeded her real estate worth $1,700, subject to incumbrance of $800, purchased with an inheritance from his grandmother, in consideration of the support furnished, which was worth $100 per year. Held, that the facts justified a finding of emancipation, so as to make the obligation that of the son, and not the father, and therefore the conveyance was on a sufficient consideration.

Appeal from circuit court, Whitley county; Joseph W. Adair, Judge.

Action by Robinson & Co. against Delmar C. Hathaway and another. There was a judgment for defendants, and plaintiffs ap pealed.

Affirmed.

Marshall, McNagney & Clungston, for appellants. Andrew A. Adams, for appellees.

MONKS, J. Appellant brought this action to set aside a conveyance of real estate made by appellee Hathaway to his co-appellee, Nancy Graham, as fraudulent, and subject the same to the payment of a judgment recovered by appellant against said Hathaway and another. The court made a special finding of the facts, and stated a conclusion of law thereon in favor of appellees, and, over appellant's motion for a new trial, rendered judgment against appellant. Appellant filed a motion to modify the judgment, which was overruled. The assignment of errors calls in question the conclusion of law and the action of the court in overruling the motion for a new trial, and the motion to modify the judgment. Appellant having failed to discuss the error assigned as to the conclusion of law, the same is waived. Railway Co. v. Hunter, 128 Ind. 213, 221, 27 N. E. 477; Williams v. Potter, 72 Ind. 355, 357; Carper v. Kitt, 71 Ind. 24, 26; Boyd v. Fitch, Id. 306, 313.

The finding of the court upon the question of consideration is substantially as follows: About the month of February, 1884, appellee Delmar H. Hathaway came to the home of appellee Nancy Graham, and has ever since resided there. They were in no way related to each other, and, at the time he was received into her home, there was no contract or agreement with reference to the charge to be made for his keeping; and the services rendered by her in boarding, washing for, mending, making his clothes, and furnishing him with whatever was needful for his comfort and convenience, were worth $100 per year. Soon after he reached the age of 21 years, he recognized and acknowledged his debt to her. In February, 1884, about the time she commenced to care for said Hathaway, he received an estate from his grandmother, which, when he arrived at 21 years of age, February 5, 1893, amounted to $1,400,