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routes, either of which could have been taken its contention that the court erred in overin going around the obstructing train, one dan- ruling its motion for a new trial, we will at gerous and the other two safe, and deceased took the dangerous one, he would be guilty of con- this point indicate enough of the averments tributory negligence, invaded the province of of the complaint to make clear such question, the jury, it being for the jury to say from all and will then address ourselves to its disthe circumstances whether taking the dangerous position, instead of attempting to discuss route was negligence. and dispose of the various alleged erroneous rulings by which such question is attempted to be presented.

[Ed. Note. For other cases, see Trial, Cent. Dig. 466; Dec. Dig. 194(17).] 7. RAILROADS

-VARIANCE.

345(4)-CROSSING ACCIDENT

Variance between the complaint proceeding on the theory of deceased being in the street attempting to go over a railroad crossing when struck by a train, and proof that he was killed while going around defendant's train, which he had a right to do, because it was unlawfully blocking the street, is immaterial.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1116; Dec. Dig. 345(4).]

The complaint charges in effect that the public street in the town of Leiter's Ford, which is here involved, is about 50 feet wide and runs north and south; that three of appellant's tracks cross it at an angle of 60 degrees; that such tracks are about 8 feet apart, the one on the north being the main track, and the other two being side tracks, used for switching purposes; that all

Appeal from Circuit Court, Kosciusko the land about and near the crossing is level, County; Francis E. Bowser, Judge.

Action by Effie Hunter, administratrix, against the Chicago & Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. O. Johnson, of Chicago, Ill., and L. W. Royse, of Warsaw, for appellant. Charles C. Campbell, of Rochester, Widaman & Widaman, of Warsaw, and Edward E. Murphy, of Rochester, for appellee.

HOTTEL, P. J. On January 22, 1913, at about 6:30 p. m., Joseph Hunter, while attempting to walk across the tracks of appellant's railroad at an intersection of such tracks with a public street in the town of Leiter's Ford in Fulton county, Ind., was run over and killed by one of appellant's freight trains. His widow, Effie Hunter, was appointed administratrix of his estate, and as such brought an action against appellant in the Fulton circuit court to recover damages for herself and the minor children of said decedent, charging that decedent's death was caused by appellant's negligence. The case was venued to the Kosciusko circuit court, where a trial by jury resulted in a verdict in favor of appellee for $4,000. From this judgment, this appeal is prosecuted.

The complaint was in one paragraph, and was challenged below by a demurrer with proper memorandum filed therewith. This demurrer was overruled and exceptions properly saved. A motion for new trial filed by appellant was also overruled and exceptions saved. These rulings of the trial court are here assigned as error and relied on for reversal.

and there are no fences or barriers to keep the traveling public within the limits of the street when crossing such tracks; that on a dark night it is impossible for a traveler on such highway to know his whereabouts on such crossing, whether in the center or at the side thereof, or on appellant's adjoining right of way; that the view of appellant's tracks both to the east and the west, by a traveler approaching said crossing from the south, was obstructed by buildings and structures (particularly described) located on appellant's right of way, immediately south of its tracks; that the travel into said town from the south converges into said street at said crossing, which is the only crossing crossing is much traveled by the public; over said tracks into said town, and said that at the time of the occurrence complained of, and for more than 20 years previous thereto, the appellant had not maintained any fences or cattle guards at said crossing, but had thrown out to the public such crossing and the adjacent right of way thereto for travel; that at about 6:30 p. m., on January 22, 1913, appellant pulled a long freight train on the first side track south of its main track, and permitted it to stand over and upon said crossing for a half hour and negligently failed to cut said train at the crossing, or to leave any space on said crossing open for public travel; that the said train extended 25 or 30 rods west of said crossing, and the caboose thereof was 50 feet east of the crossing; that at about 7 o'clock p. m., and while said train was standing across said crossing on said first side track south of the main track, appellant negligently backed a tender, an engine, and two box cars from the west over the second or south side track; that the night was dark and there were no lights on or about said crossing, except those on the rear end of said caboose, which hindered rather than aided a view to the west; that appellant negligently backed said tender, engine and cars over said south

The complaint was challenged on the grounds: (1) That it did not charge appellant with any negligence; (2) that it discloses by a fair inference that decedent was guilty of negligence contributing to his injury. Inasmuch as the question which the appellant attempts to present by those grounds of its attack on the complaint lie at the bottom of the most of the reasons urged in support of side track without any headlight or other

owed no duty, except that it should not wantonly and willfully run him down.

"But if it be said this question does not arise upon the complaint, since it avers that the collision was at the crossing, then we insist that the complaint shows deceased guilty of contributory negligence in going upon the crossing."

light on the approaching end of said train, I once became a trespasser to whom appellant and, on account of the darkness, such train could not be seen by a traveler on or approaching said crossing; that said train was negligently backed over said crossing at the dangerous speed of 20 miles an hour without any brakeman or servant to give any warning of its approach, and without sounding the [1] We will first consider appellant's conwhistle or ringing the bell of the engine, tention that the complaint shows by fair inetc., and "without giving any signals or warn- ference that decedent was guilty of contribuings whatever of the approach of said train tory negligence. It is, in the main, based on upon and over said crossing"; that at said the averment of the complaint that decedent time decedent, Joseph Hunter, was south of was familiar with the crossing and its enand approached said crossing with the inten- vironments. Such averment, especially when tion of passing over it, and found it obstruct- considered in the light of the other avered by said train on the first side track; ments, which show or tend to show that dethat decedent frequently passed over said cedent's conduct was not different from that crossing, was familiar with it, and with its of a man of ordinary prudence, would not environments; that after waiting for said justify the court in saying, as a matter of first train to clear said crossing for his pas-law, that the complaint shows that decedent sage, and after appellant had failed to clear the same, decedent started upon said highway across said tracks by traveling over the south track and around said caboose; that just as he had crossed the south rail of the south track and was about to step over the north rail thereof to go around said caboose, the appellant then, while still obstructing its first side track, negligently backed said second train from the west down upon and over said crossing, as aforesaid, and down and over decedent, and knocked him down and killed him; "that the defendant negligently ran said second train down upon and over said decedent and killed him, without any light whatever on the approaching end of said second train to give him any warning, and without giving the statutory signals or giving any signals whatever to apprise him of the approach of said train, and without having any of its servants on the approaching end of said train. ✶ ✶

串 "

Appellant's theory of the complaint and its objections thereto, stated in its own language, is as follows:

was guilty of negligence contributing to his injury. Upon such issue the defense has the burden, and it is only when the averments of the complaint are such as to affirmatively show, or necessitate the inference, that the plaintiff was guilty of such negligence, that a demurrer on such ground should be sustained. Wabash R. Co. v. McNown, 53 Ind. App. 116, 135, 99 N. E. 126, 100 N. E. 383; Cleveland, etc., Ry. Co. v. Clark, 51 Ind. App. 392, 412, 413, 97 N. E. 822; Cole v. Searfoss, 49 Ind. App. 334, 338, 339, 97 N. E. 345, and cases there cited.*

Appellant, by its italicized words supra, concedes away its contention that the complaint shows that decedent was a trespasser when injured. In any event, the theory of the complaint indicated by all its averments is that decedent was a traveler on the street in question attempting to cross appellant's tracks when injured, and that the appellant owed to him the duties which it owed to all travelers over its public crossings, and that it negligently violated such duties by the acts of omission and commission therein set

of the grounds of its motion for new trial, and will be there further considered.

"It is the theory of this complaint that the two acts of negligence of the appellant, to wit: out. Upon this theory the averments are (1) The blocking of the crossing by the train on sufficient, under the authorities hereinafter the middle track, and (2) the backing of the cited. However, the question suggested by train on the south track down upon the cross-appellant's ing and down upon deceased, without a light up- appellant's contention, supra, is the controlon its approaching end, and without giving sig-ling question involved in this appeal, and is nals of its approach, concurred in causing the squarely presented in appellant's discussion death of decedent; that is, if the middle track had not been blocked and thereby delayed him he could have passed over the south track in safety, and if no train had been run over the south track he could have gone over it and around the rear end of the train on the middle track without receiving the injury which killed him. The two acts are essentially combined in producing the result complained of. It is appellee's theory, as outlined in her complaint, that when deceased found the crossing blocked by the train on the middle track, he had a right to leave the highway and go upon appellant's premises in order to pass around the rear end of the blocking train, and that appellant owed him the duty to care for his safety while he was so doing.

"We insist that the theory is unsound. We contend that if the deceased left the highway and went upon appellant's premises for the purpose of going around the blocking train, he at

[2] In its discussion of the ruling on such motion, appellant challenges instruction No. 5, on the ground that it requires the appellant to prove contributory negligence by affirmative evidence. The instruction is not open to its criticism. It simply told the jury that it could not be assumed in the first instance that the decedent was guilty of contributory negligence, that the burden of such issue was on appellant, and that the same "must be established by a preponderance of the evidence," meaning necessarily the entire evidence, and not that of appellant alone. Its wording is entirely different from the in

structions condemned in the cases cited by in the village of Leiter's Ford, Ind., and thereappellant.

The court in several of its instructions repeated to the jury that the appellee could not recover if the jury found that the decedent had been guilty of negligence contributing to his injury, and in instruction No. 15 told the jury that:

"In determining where the preponderance of the evidence is on any fact or issue in dispute, you will look to all the evidence in the case bear ing on that fact or issue, under the rules of weighing and considering the same heretofore given you,Our without regard to which side offered the same." (Our italics.)

By instruction No. 6, the jury was told that the statutes of the state imposed upon railroad companies operating therein "the following duties in reference to obstructing a highway crossing with freight trains or cars, to wit: [Here follows a copy of section 2671, Burns 1914.]"

Instruction No. 7 is as follows:

"If you find from a preponderance of the evidence that the defendant company, through its conductor or other person in charge of the freight train in question, unnecessarily permitted such train at the time of the injury alleged to stand upon and over the highway crossing alleged without leaving a space of 60 feet or other space across such highway, whereby plaintiff's decedent could travel upon and across said railroad, as alleged, then the defendant would be guilty of negligence, and if you find the decedent was killed by reason of such negligence, and that damages resulted therefrom to the widow and minor children, if any there were, then the defendant would be liable in this action, provided all the other material allegations of the complaint are proven, and provided, further, that you do not find from a preponderance of the evidence that said decedent was himself guilty of contributory negligence."

Instruction No. 8 tells the jury that the statute of the state imposes upon such companies the following duties in reference to sounding the whistle and ringing the bell for highway crossings, to wit: (Here follows a copy of section 5431, Burns 1914.)

that

after unnecessarily and negligently permitted
at the time in question, and that at such time
the same to stand over and upon said crossing
the defendant company negligently failed to cut
said train at said crossing, or to leave for the
traveling public any space whatever between
said train extended from said crossing westward
the cars of said train at said crossing;
about 25 or 30 rods to the engine of the same,
and the east end of said train extended east
from said crossing about 50 to 75 feet from the
center of said crossing; that at the said time
the decedent herein, Joseph Hunter, approached
on foot from the south on said highway toward
said crossing with the intention of passing over
the same; and thereupon said freight train was
obstructing said crossing as aforesaid, and said
decedent on his approach and attempt to pass
said crossing was prevented thereby from passing
over said crossing; and thereupon said dece-
said freight train by going eastward along and
dent started to pass around the east end of
about said freight train upon the right of way
of this defendant intending to return to said
highway, and using reasonable care and caution
in so doing, the said decedent would not there-
by as a matter of law become a trespasser, and
if while doing so he was killed by reason of the
negligence of the defendant in operating and
managing another train over said crossing in
manner and form alleged in the complaint, and
without fault or negligence on the part of said
decedent, then the defendant company would
be liable therefor, provided the other material
allegations of the complaint are proven.
"(12) *

If you find from a preponderance of the evidence that the defendant, through its servants in charge of the train in question, backed the engine and train, or part of the train, over said crossing in the nighttime and while it was dark, at a rapid and dangerous rate of speed, that the same was a much used crossing at said time of night, that said defendant had no light on the end of said train approaching said crossing, and gave no signals or warnings of any character of the approach of said train, and so backed said train upon and and thereby killed him, as alleged in the comover said crossing and said decedent, Hunter. plaint, then said defendant would be guilty of negligence in operating said train, and if you further find that said negligence was the cause of said injury and death of said Hunter, said defendant would be liable therefor, provided the other material allegations are established, and provided said Hunter was not guilty of negli

That part of instructions Nos. 9, 11, and 12 necessary to an understanding of the objec-gence which contributed to his death." tions made to each respectively, as hereinafter indicated, are as follows:

"(9) *** And if you find that said decedent approached said crossing upon said highway and went upon the same and upon the track of said defendant, and while in such position upon said highway and crossing, a train approached from the west, not having given any of the signals required by law, whereby and by reason of such failure to give such signals he was overtaken and run upon and over and killed, then the defendant would be liable if the other material averments of the complaint have been proven by a preponderance of the evidence, and the decedent was without fault on his part; but the burden of proving that the decedent did not use ordinary care and caution in approaching and crossing said railroad or said highway, if he did so approach and cross it, is upon the defendant."

The giving of each of these instructions is urged as error.

[3] Instruction No. 6 is objected to on the ground that the statute quoted applies to a conductor and does not prescribe the duty of the railroad company in reference thereto. This contention is answered by the Supreme Court in the following cases: Cleveland, etc., Ry. Co. v. Tauer, 176 Ind. 621, 624, 96 N. E. 758, 39 L. R. A. (N. S.) 20; McCollum v. Cleveland, etc., Ry. Co., 154 Ind. 97, 55 N. E. 1024.

[4] Instructions Nos. 7 and 9 are each objected to on the ground that the complaint charges two acts of negligence, combined and acting in concert, viz., the blocking of the "(11) But if you find from a preponderance crossing and the negligent running of the of the evidence that on the night of January other train backward, and it is insisted that 22, 1913, at about the hour of 6:30 p. m. the these instructions authorize recovery by defendant company, pulled a freight train upon proof of the one or the other of said acts and over the crossing in question and into the siding of the first side track south of the main alone. Assuming, without deciding, that aptrack of the railroad of the defendant company pellant is right in its interpretation of the

theory of the complaint, neither of the instructions is open to the objection urged. They respectively tell the jury, and correctly so, what facts will authorize it to find the appellant guilty of negligence, under the respective sections of statute before referred to, and then No. 7 says, in effect, that if the decedent was killed by such negligence and the widow and children were damaged thereby, the appellant would be liable, "provided all the other material allegations of the complaint are proven," and provided, "further, that you do not find from a preponderance of the evidence that said decedent was himself guilty of contributory negligence." Similar provisos appear in instruction No. 9. With such provisos in said instructions, the jury could not have been misled as to the facts essential to liability.

[5] Instruction No. 9 is also objected to on the further ground that it is not applicable to the evidence. The same objection is urged to instruction No. 8. These objections involve the law propositions referred to supra, viz., such objections are based on the assumption that deceased was a trespasser, and that the statute requiring signals was intended for the benefit of those only who were in the street, either crossing or attempting to cross the tracks within the street limits. The same question is presented by appellant's obsame question is presented by appellant's objections to instructions 11 and 12, given by the

crossing, was not a trespasser, and that the railroad company owed to such injured traveler the duties which it owed to other travelers using the crossing in the usual and ordinary way. Kurt v. Lake shore, etc., Ry. Co., 127 App. Div. 838, 111 N. Y. Supp. 859. This case was affirmed by the Court of Appeals in 194 N. Y. 598, 88 N. E. 1122. See, also, Crowley et al. v. Penna, R. Co., 231 Pa. 286, 80 Atl. 175; Savannah, etc., Ry. Co. v. Hatcher, 115 Ga. 379, 41 S. E. 606; Mayer v. Chicago, etc., R. Co., 63 Ill. App. 309; Chicago, etc., R. Co. v. Mayer, 112 Ill. App. 149; Johnson v. Atlantic, etc., R. Co., 59 Fla. 302, 51 South. 851, 138 Am. St. Rep. 126, 20 Ann. Cas. 1093; Cent. of Ga. Ry. v. Owen, 121 Ga. 220, 48 S. E. 916.

Appellant's contention in the Kurt Case, first cited supra, was substantially the same as that here made by appellant, and, in that case, the appellant had in its favor a statute of the state of New York, the wording of which, if strictly construed, would have authorized the interpretation there insisted upon by the appellant.

We therefore hold that, as affecting the question under consideration, instructions Nos. 7, 9, 11, and 12, given by the trial court, were in accord with both reason and authority, and hence furnish appellant no ground for reversal. In this connection the court also gave instruction No. 10, which is as follows:

ing the whistle and ringing the bell on a locomo"10. The statute just quoted you about soundtive engine while approaching a highway crossing is made for the protection of travelers on public highways in approaching a railroad, and of way of a railroad as a trespasser in any way. does not apply when a person is upon the right

court, and appellant's refused instruction No. 9 and others, and, as before stated, is the controlling question presented by this appeal. While this exact question seems to have never been squarely decided in this state, this court has recognized the right of the traveler "to deviate from the established road on adjacent land when the highway becomes impassable." Small v. Binford, 41 Ind. App. 446, 83 N. E. 509. Indeed this right seems to have been long recognized as fundamental. Cooley's Blackstone, vol. 1, book 2, p. 35; 37 Cyc. 206, C, and cases there cited. If an obstruction on the highway, for which the adjacent owner is in no way respon-ory of the case as favorably to it as the authorities supra would warrant.

sible, will authorize the use of his land adjacent to the highway by the traveler as a means of getting by the obstruction, it would seem that there should be no reason why one, who, under the law, is guilty of purposely and intentionally obstructing a highway, in violation of a positive statute, should be permitted to treat as a trespasser another, who, in the use of such highway, is compelled by such obstruction to pass over such adjacent owner's premises.

In addition to said fundamental principle, which is in appellee's favor, he also has express authority in other jurisdictions which support his contention. The Supreme Court of New York, Appellate Division, in a case where the facts involved were very similar to those here involved, held, in effect, that the traveler injured on the railroad company's right of way, adjacent to the street

"If you find that said decedent was not at the time of his said injury upon said highway, but was on the right of way of said defendant walking thereon, and without intention or purpose of returning to said highway, then so far as this case is concerned he would be a trespasser, and there would be no recovery."

This instruction presented appellant's the

[6] The court's refusal to give instruction No. 9, tendered by appellant, is urged as error. The latter part of this instruction told the jury, in effect, that if there were three routes, either of which decedent could have taken in passing around the obstructing train, and one of them was dangerous, and the other two safe, that if decedent took the dangerous way, he would in that event be guilty of contributing to his injury, and could not recover.

Assuming, without so holding, that there was evidence to which the instruction was applicable, it was properly refused because it invaded the province of the jury, in that it told the jury, as a matter of law, that the taking of the dangerous route was negligence, when such question was one of fact for the jury to be determined from all the circumstanc es of the case. Jenney Electric Mfg. Co. v.

Flannery, 53 Ind. App. 397, 98 N. E. 424, and

cases there cited.

(225 Mass. 116) FITZGERALD v. YOUNG et al.

[7] Finally, it is contended by appellant (Supreme Judicial Court of Massachusetts.

that there was a material variance between the complaint and the proof in that the complaint charges and proceeds on the theory that the decedent was struck while in the street, attempting to cross appellant's tracks, while the proof shows that he was not in the street when struck, but was on appellant's right of way. This is, in effect, a presentation in another form of the question already considered and determined. While there may be a technical variance between the averments of the complaint and the proof in the respect suggested, it is not of a material character under the authorities cited above. The theory of the complaint is that decedent was in the street on the crossing when injured, in the sense that appellant owed to him the care which it owed to travelers generally on its crossing, and that its failure to exercise such care resulted in decedent's death. Under the authorities before cited, this theory of the complaint was sustained by the evidence.

No reversible error appearing in the record, the judgment should be, and is, affirmed.

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APPEAL AND ERROR 4 DECISION OF
SINGLE JUSTICE-MODE OF REVIEW.
No appeal lies from a decision of a single
justice of the Supreme Judicial Court in a pro-
ceeding at law, but they can be considered only
on exceptions or by report under R. L. c. 173,
§ 96, as amended by St. 1906, c. 342, § 2, and
St. 1910, c. 555, § 4.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. 4.] Appeal from Supreme Judicial Court, Middlesex County.

Petition by Armidas J. Cote for a writ of mandamus against Enos T. Luce. Petition dismissed, and petitioner appeals. dismissing petition affirmed.

Armidas J. Cote, of Waltham, pro se.

Order

PER CURIAM. This petition for a writ of mandamus was dismissed by the single justice. The petitioner appealed. No appeal lies from a decision of a justice of this court in a proceeding at law. Alleged errors of law can be considered only on exceptions or by report. R. L. c. 173, § 96, as amended by St. 1906, c. 342, § 2, and St. 1910, c. 555, § 4; Channell v. Judge of Central District Court of Northern Essex, 213 Mass. 78, 99 N. E. 769.

It is not improper to add that manifestly no error of law is disclosed on this record. Order dismissing petition affirmed.

Hampden. Oct. 19, 1916.)

1. EVIDENCE 380-GROUNDS FOR ADMISSION-CALLED TO ATTENTION OF COURT.

In a servant's action for loss of his fingers in a planer, where plaintiff offered in chief a photograph showing the planer which he denied accurately represented the machine as it was at the time of the accident, the court properly refused to receive such photograph to illustrate the dangerous nature of the planer when not adequately guarded, and to enable the jury to judge as to whether the witnesses, who said they had seen the planer without the roll, could distinguish the difference between it with and without; such considerations having not been adequately called to the attention of the court. [Ed. Note.-For other cases, see Evidence,

Cent. Dig. § 1657; Dec. Dig. 380.1
2. WITNESSES

TION OF COURT.

372(2)-PREJUDICE-DISCRE

Permitting cross-examination of a witness for plaintiff to show that he had borrowed money from a defendant and had not yet paid it back, when he had testified that he was not discretion of the trial court. prejudiced against defendant, was within the

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1193-1196; Dec. Dig. 372(2).j 3. MASTER AND SERVANT 270(10)—INJURIES TO SERVANT EVIDENCE.

In a servant's action for injuries consisting of having his fingers chopped off by a planer, it being part of plaintiff's case to show that the planer was in fact operated without a back roll at the time of the accident, and to prove that it was defective and dangerous because of the absence of the back roll, the trial judge, in his discretion, properly excluded plaintiff's evidence offered in rebuttal to show that the planer could be run without the back roll.

Servant, Cent. Dig. § 920; Dec. Dig.
[Ed. Note.-For other cases, see Master and
Own
270(10).]

4. MASTER AND SERVANT 153(2)-INJURIES
TO SERVANT-DUTY OF MASTER TO Warn.

Where a blacksmith's helper was directed to work at a planer, being inexperienced, the master, under a nondelegable duty, should have warned him, on pain of liability for injuries received, that the material, as it passed between the roll and the knives of the planer, was likely to jump and kick back, taking the operator's hand under the knives.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 315; Dec. Dig. 153(2).]

5. MASTER AND SERVANT 153(3)-DUTY TO WARN-OBVIOUS DANGER-MATTER OF COMMON KNOWLEDGE.

The fact that a stick in a mechanical planer may jump and kick back as it passes between the roll and knives of the planer is not a matter of common knowledge.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 3162; Dec. Dig. 153(3).]

6. MASTER AND SERVANT 89(3)—INJURIES TO SERVANT-"ACTING SUPERINTENDENT."

An employer's blacksmith, boss over a single. helper in the blacksmith department of a shack an "acting superintendent." containing a forge, anvil, and lathe, was not

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 155; Dec. Dig. 89(3).]

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