in the case of Holmes v. Judge, 31 Utah, at page 281, 87 Pac., at page 1014, is very pertinent. He there said: "In all cases where the boundary is open, and visibly marked by monuments, fences, or buildings, and is knowingly acquiesced in for a long term of years, the law will imply an agreement fixing the boundary as located, and will not permit the parties or their grantees to depart from such line." The question here is not one of surplus ground, and who is entitled to it, as is incidentally argued by the respondent. The plaintiff purchased of his grantor 34.6 feet of ground situate in the southerly portion of lot 10. The description in his deed reads: "Beginning at a point 89.76 feet west of the southeast corner of lot 10, and running thence, west, 141.5 feet, to the east line of Grant Avenue; thence, north, 34.6 feet; thence, east, 141.5 feet; thence, south, 34.6 feet, to the place of beginning." In other words, the south line of the land conveyed to him is the south line of lot 10. He has 34.6 feet of ground lying immediately to the north of the south boundary line of lot 10. He by that deed of conveyance obtained no more. He claims no more in his complaint. The south line of his land and the south line of lot 10 being coextensive, the question is: Where is that line? If it is determined to be at the place as shown by the official resurvey of the city, he has a parcel of land 34.6 feet by 141.5 feet lying immediately five feet north of the fence. If, on the other hand, the south line of lot 10 is determined to be at the place as fixed and established and as indicated by the old fence line, he has a parcel of land 34.6 feet by 141.5 feet lying immediately to the north of the fence line. In either case he gets but 34.6 feet of ground, and no more. The only question is, Where is the south boundary line of the parcel which was conveyed to him by his grantor? The plaintiff asserts that it is the south boundary line of lot 10. So does the defendant. So reads the deed. But the plaintiff asserts that the south boundary line of the lot is as indicated by the fence, while the defendant asserts such boundary line to be five feet north of the fence line. The contention made by the respondent that because in the deed the land purchased by plaintiff was described as a part of lot 10, in block 10, "of South Ogden survey in Ogden City survey," the plaintiff purchased with reference to that particular survey, and hence the starting point of the de scription of his land, the southeast corner of lot 10, must be determined and taken to be at the point as shown by, or according to, that survey, regardless of old fence lines, or other monuments, or expressed or implied agreements, or acquiescence, of the adjoining landowners, showing it and a boundary line coextensive therewith to be fixed and established at another place, was made and refuted in the case of Moyer v. Langton, supra. The pertinent question is not where is the southeast corner of lot 10 and the south boundary line of the lot coextensive therewith, according to some particular official survey made by or under the direction of Ogden City, but, as between the adjoining landowners, where is that point as it was originally fixed and established by an original or primary survey, or by a practical location agreed upon or acquiesced in for a long period of time by the persons interested. Upon the undisputed evidence it being conclusively made to appear that, as between the adjoining landowners, a practical boundary line was agreed upon, or acquiesced in, for a long period of time, and that all persons interested occupied up and claimed 4, 5 to the fence line, and that, until the alleged trespass, no adjoining claimant ever claimed beyond it, we are of the opinion that as between such landowners the fence line so agreed upon or acquiesced in became and is the boundary line between such lots, and that neither the parties having so recognized and treated it, nor their grantees, may now depart therefrom and claim beyond it. It follows that the judgment of the court below is not in harmony with such holding, and hence must be reversed, and the cause remanded for a new trial, with costs to appellant. Such is the order. FRICK and MCCARTY, JJ., concur. PULOS v. DENVER & RIO GRANDE RAILROAD COMPANY, No. 2074. Decided February 9, 1910 (107 Pac. 241). OF 1. MASTER AND SERVANT-INJURY TO SERVANT-ASSSUMPTION RISK-OBVIOUS DANGERS-CONCURRENT NEGLIGENCE OF MASTER. An employee engaged with a gang of men in loading a flat car with old rails, some of which are crooked, from the ground along the track, assumes the risk of injury from a rail falling off the car after being thrown on, though, because of a direction by the foreman, there were no braces on the car to prevent the rails from falling off, where the danger is as obvious to him as to the foreman. (Page 248.) 2. MASTER AND OF SERVANT-INJURY TO SERVANT-ASSUMPTION RISK-SUFFICIENCY OF EVIDENCE. Evidence held to show that the dangers of injury from a rail falling from a flat car after being thrown on in loading were as obvious to plaintiff as to the foreman. (Page 248.) 3. APPEAL AND ERROR-RIGHT TO ALLEGE ERROR-ERROR INDUCED BY PARTY COMPLAINING. Where the jury could properly render a verdict for plaintiff by following either of conflicting instructions, defendant, whose request induced the conflict and caused the error in its favor, cannot complain of the conflict.1 (Page 252.) 4. NEW TRIAL GROUNDS-INSTRUCTIONS-INJURY TO SERVANT-CONFLICT EVIDENCE TO SUPPORT. In an action for injuries to an employee from a rail falling from a flat car after being thrown on the car in loading, the court instructed generally that defendant is liable for the negligence of "any agent, servant or employee," and then specifically instructed that defendant is not liable for the negligence of its foreman in charge of the work. There was no claim or evidence of negligence by any person working with plaintiff except the foreman. Held, that a verdict for plaintiff will be set aside, not because of the conflict in the instruction, but because it has no support in the evidence.2 (Page 253.) 5. NEW TRIAL-VERDICT CONTRARY TO INSTRUCTION. Where the court instructed that defendant is not liable for the negligence of its foreman, and the evidence shows that, if plaintiff's injury was the result of any negligence, it was that of the foreman, a general verdict for plaintiff will be set aside as contrary to the instruction, and without support in the evidence. (Page 254.) 1 Wood v. Railroad Co., 28 Utah, 351, 79 Pac. 182. 6. NEW TRIAL GROUNDS-VERDICT CONTRARY TO EVIDENCE. A new trial should be granted in such case, as the verdict is without evidence to support it. (Page 257.) 7. TRIAL-TAKING PLEADINGS TO JURY ROOM. It is the duty of the court to construe the pleadings and to instruct the jury on the issues; and it is not proper to permit the jury to take the pleadings with them to the jury room unless they have been put in evidence as proof of some fact, and made exhibits in the case. (Page 258.) Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge. Action by Michael Pulos against the Denver & Rio Grande Railroad Company. Judgment for plaintiff. Defendant appeals. REVERSED. Van Cott, Allison & Riter for appellant. P. T. Farnsworth, Jr., and O. W. Carlson for respondent. STRAUP, C. J. This is an action brought to recover damages for alleged personal injuries. The plaintiff, who was an employe of the defendant, was engaged, with others, in loading steel rails on flat cars. While loading a rail it slipped off a car and struck and injured him. The accident occurred in Colorado. The plaintiff alleged that the rails were improperly and negligently piled on the car; that the defendant failed to provide braces on the side of the car; that the foreman of the defendant in charge of the work negligently ordered the plaintiff and others to lift a crooked rail from a ditch and throw it on the car; and that, by reason of conditions occasioned from the manner in which the rails were piled, and the absence of braces, a rail which was thrown on the car slipped off and struck the plaintiff, who, because of a ditch and of a space of but five feet between the car and a precipitous mountain to the rear of him, could not make his escape after the rail was thrown and before it struck him. He also alleged that in Colorado the doctrine that a master is not responsible for an injury sustained by his servant through the negligence of a mere fellow servant was abrogated by statute, and that under the law of that state the defendant was liable for the injury sustained by the plaintiff, though solely caused by the carelessness or negligence of a mere fellow servant to the same extent and in the same manner as though the injury had been occasioned by the personal negligence of the defendant. The answer contained a general denial and pleas of assumption of risk, contributory negligence, and fellow service. The case was tried to a jury. A verdict was rendered for the plaintiff. The defendant appeals. The material facts are: The defendant, near Ruby, in Colorado, rebuilt its tract by removing old rails and replac ing them with new ones. The old rails, when they were removed, were strung along the track. At the time in question the defendant was engaged in loading the old rails on three flat cars pushed along the tract by an engine operated by a train crew. Two gangs of men, each consisting of about fourteen men, were engaged in loading the rails, one on each side of the car. The plaintiff and the other workmen with him were Greeks. The work was in charge of, and was directed by, a boss or foreman. The gang of fourteen men of which plaintiff was one, with their hands, lifted the rails, one at a time, weighing 650 pounds, and threw them on the cars. Two men on the car with bars placed the rails in position lengthwise the car after they had been thrown on. Other men picked up angle bars and other material which also were thrown on the cars. The foreman gave his orders and directions to an interpreter on the car, who repeated them to the men loading the rails. The rails were strung along the track about thirty feet apart. When the cars were moved to a place where the rails were lying, the men took hold of one of them, and upon a signal given by one of the men, it was raised to the desired position, and then upon |