(145 N.E.)

Appeal from Circuit Court, Blackford County; Frank W. Gordon, Judge.

Proceeding by Marion Linder and others against the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company to establish a drain. From a judgment against the Railroad Company, it appeals. Reversed, with directions.

state central committee to enforce obedience | c. 97, § 22), held cause for setting aside report to its rules, regulations, or resolutions by man- of drainage commissioners, on proper remondamus proceedings, and then assert infer- strance, but not ground for motion to dismiss entially that it confers jurisdiction upon the petition for lack of jurisdiction. court to entertain an action to prevent the enforcement of such a rule. The pending suit in the circuit court is not one to enforce or enjoin the enforcement of a rule of the state committee. It seeks to prevent George V. Coffin as county chairman from obeying a certain resolution without showing an equal or superior right in the plaintiff to perform the duties the state committee has deemed proper to enjoin upon the defendant Coffin who, the complaint alleges, is assuming to act in violation of plaintiff's rights. The mere fact that the state committee might bring an action of mandamus to enforce its rules, regulations, or resolutions does not operate to give the circuit court jurisdiction of a suit by one to enforce what he claims to be his political rights not shown to be authorized by any action of the state committee, city committee, or given by statute.

In the absence of any statute or any rule or regulation of the city committee or state committee assuming to confer upon the city chairman a right to preside at the meeting of the city committee for the purpose of organization, the circuit court is without jurisdiction to decide as between him and another, who assumes to act under authority of a resolution of the state committee, which of them shall serve as presiding officer.

It is therefore adjudged that a writ of prohibition shall issue to the Marion circuit court forbidding it to take any further action in the said suit by Irving W. Lemaux against George V. Coffin filed in said court on January 10, 1925.

Where appellees for more than two years failed to file briefs, court, on prima facie showing in appellant's brief of reversible error, may in its discretion reverse judgment as on confession of error.

2. Drains 28-Failure of petition to proper ly describe property affected not ground for motion to dismiss petition for lack of juris

diction.

G. E. Ross, of Logansport, for appellant.

PER CURIAM. [1] This is an appeal from a judgment establishing and ordering the construction of a public drain. On August 1, 1922, appellant filed its brief, setting out each of 14 assignments of errors, and stating 46 "points" in support of its contention that the trial court committed a number of errors for which the judgment should be reversed. Counsel for appellees receipted for the transcript on August 29, 1922, and, after having been granted one extension of time in which to file a brief, asked and obtained a second extension, to and including February 5, 1923. The record does not show that anything further has been done, and although more than two years have elapsed since the brief for appellees should have been filed, they have offered the court no assistance whatever in determining whether or not appellant's contention that the trial court erred is well founded. Where the brief on behalf of appellant makes a prima facie showing that reversible error was committed, this court may, in its discretion, treat the failure of appellees to file a brief, attempting to aid the court in learning whether or not reversible error in fact was committed, as a confession of errors, and may reverse the judgment as upon such a confession. Burroughs v. Burroughs, 180 Ind. 380, 103 N. E. 1; Ewbank, Manual (2d Ed.) §§ 190, 190a.

[2] That the drainage petition did not describe two-thirds of the aggregate length of the work as reported for construction, or did not describe two-thirds in area of the lands that would be affected by the construction of the drain as reported, in compliance with section 6142f, Burns' Supp. 1921 (section 22, c. 97, p. 492, Acts 1919), is cause for setting aside the report of the drainage commissioners, on proper remonstrance, but is not an objection that can be presented by a motion to dismiss the petition for lack of jurisdiction. In re Gilbert (Ind. Sup.) 144 N. E. 551.

That drainage petition did not describe twothirds of aggregate length of work or two-thirds in area of lands affected, in compliance with The judgment is reversed, with directions Burns' Ann. St. Supp. 1921, § 6142f (Acts 1919, to sustain appellant's motion for a new trial.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

4. Witnesses 275 (5)-Cross-examination of
plaintiff about facts to which he had testified
at preliminary examination held improper.
Cross-examination of plaintiff about facts
on which he had not been examined in chief,
but to which he had testified when a prelimi-11.
nary examination under oath was taken before
trial, which had not been introduced in evi-
dence, was improper.

Act of counsel in personal injury action in 5. Witnesses 275(2)-Cross-examination re-writing on a blackboard before jury a calculalating to facts in issue on which plaintiff had tion of amount of damages that he claimed testified on direct examination, held proper. should be awarded to plaintiff, if misconduct, Cross-examination of motorman on interur- was not sufficient to require a new trial, where ban work car, who was injured when his car only figures were written on blackboard, and collided with an extra car, intended to elicit it did not appear that removal of blackboard evidence of what he had learned about such or erasure of figures nor any action by court car running through his work limits in hauling except withdrawal of submission was requested. cement during two months that he had been working on such car, was proper, where, such questions were in issue, and evidence elicited

EWBANK, J. The plaintiff below (appellee) recovered a judgment against the defendant company (appellant) for $6,150 damages for personal injuries sustained in a collision between two interurban electric cars, one of which he was operating as motorman.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

Plaintiff had received and accepted certain payments under the Workmen's Compensation Law of Indiana (Laws 1915, c. 106), but based his alleged cause of action on the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), relating to railroad carriers of interstate commerce. Overruling defendant's motion for a new trial, and overruling its motion to modify the judgment, are assigned as errors.

working there with his work extra car, and having knowledge of that fact, negligently ran said north-bound car into the work limits at a high and dangerous rate of speed, to wit, at 30 miles per hour, and so that it could not be stopped when it met plaintiff's work extra running south to Watson for the purpose of letting the regular south-bound train pass, but ran against plaintiff's car and thereby injured him. The answer was a general denial and certain affirmative pleas.

The evidence proved, without dispute, that defendant was operating under the standard railroad rules, as generally adopted by railroads in this country, which had been approved by the American Railway Association and by the Public Service Commission of Indiana; that these rules provided for send

[1] The motion to modify the judgment is based upon appellant's construction of the evidence, and an argument as to the probable confusion in the minds of the jurors caused by one of the instructions. But in the absence of any specific findings by the jury in answer to interrogatories, this court cannot know that the jury really intended to award as damages anything else than the amounting out a work extra to work between designamed in the general verdict. No available error was committed in overruling the motion to modify the judgment.

nated stations during certain hours; "protect itself against all trains;" required all extra trains to keep out of the way of regular The complaint was in three paragraphs. scheduled trains, and to clear the line for The first and second paragraphs charged neg- them at least 5 minutes; that where an exligence of the train dispatcher, setting out tra was sent into the working limits of a certain rules adopted and promulgated by work extra it must be advised of that fact defendant, which were alleged to have been by adding a statement in the following form: in force at the time of the accident, and "Car No. 8 is working as an extra between averring that after having ordered plaintiff, Watson and Sellersburg"; that being so adas motorman of a work extra car, to work vised it must run expecting to find the work between the stations of Watson and Sellers- car within the limits named; that a work burg, keeping out of the way of regular | car met or overtaken by an extra must allow scheduled trains, the train dispatcher negli- it to pass without unnecessary detention; that, gently ordered another extra train to run an "extra train" was any train or car not repnorth from Watson toward Sellersburg, at a resented on the time table, including "work time when plaintiff was properly and in obe- extras" and other "extras"; that a "single dience to the rules and his orders running track" was a main track on which cars were south to Watson, to get out of the way of operated in both directions; that extra trains a regular scheduled train that was coming were inferior to all scheduled trains, and from the north, and that the collision and had no rights except those conferred upon plaintiff's injuries were caused by such neg- them by train orders. And that at the ligence of the train dispatcher. They dif- time of the accident and for many days befered in that the first paragraph charged fore plaintiff had been operating a work exthat the train dispatcher ordered the north- tra motor car on the single track between bound extra into the limits within which Watson and Sellersburg; that he had an orplaintiff's car was working without having der for his car to "work as an extra between made any provision for meeting and passing Watson and Sellersburg from 7:17 a. m. unthe work car, while the second charged that, til 4:45 p. m. (the day of the accident); proat the time the north-bound extra was or- tect against all trains"; and had worked dered to run past Watson upon the single under similar orders on previous days; that track road on which plaintiff's car was work- he had on his car a conductor and a man who ing, the defendant and its train dispatcher loaded and unloaded cross-arms to be attachknew, or by the exercise of reasonable dil-ed to new poles that were being set for carigence could have known, that plaintiff was running the work car south to Watson to keep out of the way of the regular train from the north. The third paragraph of complaint alleged that a rule in force provided that when an extra received orders to run over working limits, and was advised that a car was working as extra between designated stations, it must run between those stations expecting to find the work train within the limits named; but that the motorman in charge of defendant's north-bound extra, being ordered to run from Watson to Sellersburg, and told by the order that plaintiff was

rying wires used in the operation of the railroad, and worked with a crew of 14 men who set the poles and strung the wires; that during all the time he had been so working, extra trains had been run to the number of three or more daily from Watson to Sellersburg and back, carrying cement from a factory to Jeffersonville and Louisville, and at least one round trip had been made by an extra car that morning; that there were two passing tracks, at intervals of a mile or two, in the distance (4.8 miles) between Watson and Seliersburg; that the extra by which plaintiff was injured was sent north from

[2, 3] Obviously, if both plaintiff and the motorman on the north-bound car had been running in obedience to the orders they had, respectively, received, and in obedience to the rules, neither would have been going so fast but that he could have stopped within half the distance from his car to the other one after he could see it approaching, and the collision would not have occurred. And we have not been referred to evidence sufficient to sustain a finding 'that the injury was caused by negligence of the train dispatcher, as charged in the first and second paragraphs of the complaint, if the jury had so found. But there was evidence tending to prove that negligence of the motorman in charge of the north-bound extra. in running into the work limits of plaintiff's car at such a rate of speed that he could not stop after he saw the work car on the track ahead, was the cause or one of the causes of the accident, and we must assume that the verdict is based upon that evidence, which is sufficient to sustain it. [4] Defendant undertook to cross-examine plaintiff about facts material to an affirmative defense set up by answer, about which he had not been examined in chief, but concerning which he had testified on cross-examination by his own counsel, when a preliminary examination of the plaintiff under oath was taken before the trial, that had not, however, been introduced in evidence. It was not error to sustain an objection to such

Watson into the work limits in which plain- | extra S, and wanted to distribute cross-arms tiff's car was operating, under an order giv- and return to Watson ahead of No. 64, and en to him at Watson to proceed to Bridge | asking if anything extra was coming south; siding (about two miles north) and there pass and that the train dispatcher said there was No. 64 (a south-bound regular scheduled nothing coming, but did not inform plaintiff train), which order stated that car No. 8 that any extra was coming north; that No. (which plaintiff was operating) was working 64 was a regular local passenger train from as extra between Watson and Sellersburg; the north; that after this conversation and that plaintiff was running his work ex- plaintiff went down the track northward totra car south, toward Watson, to get out of ward Sellersburg, throwing off a cross-arm the way of No. 64, when it met the north- | at each pole, and after running three-fourths bound extra just south of a curve in the of a mile, turned and ran south to get out track about one-half mile from Watson. of the way of No. 64; but he repeated three or four times in his testimony, in answer to repeated questions asked by his counsel, that he did not know the north-bound extra which injured him would be sent or was coming into his work limits until he saw it coming rapidly toward him as he rounded a curve in the track; that a little hill and some bushes 10 or 15 feet high were on the inner side of the curve, and obstructed his view of the track on which the other car was coming until he was almost around it, and that there was no telephone nearer than the station at Watson over which he could have learned that an extra was coming from the south. But he identified the order under which he was working, which contained the direction to "protect against all trains." On cross-examination he was asked a series of questions intended to elicit evidence of what he had learned about this same extra car running through his work limits and back, in hauling cement, during two months that he had been working between Watson and Sellersburg. More than 30 questions were asked, all going to the proposition that extra cars, including the one by which plaintiff was injured, were making several round trips each day between Watson and Sellersburg, for the purpose of hauling cement from a mill north of Sellersburg to points south of Watson, and had been doing so almost daily for some weeks while plaintiff was working there, and that he knew such extra cars were operating there, and knew that he must protect against them, without being specially notified of that fact by the train dispatcher. Objections on the ground that this was not proper cross-examination were sustained to all of these questions, and defendant excepted. This was error. If plaintiff chose to testify to any facts in issue he was subject to cross-examination covering as wide a range as his testimony. Whether he had such knowledge that this extra car was being operated and would probably be running through his work limits at that time, as to be chargeable with assumption of the risk of injury in case it was operated in the usual manner, and whether he was guilty of negligence which alone caused the injury, or which contributed to cause it, were questions in issue, to which his evidence in chief and the excluded questions on cross-examination both related.

cross-examination.

[5] In his examination in chief plaintiff

testified that he received the order above re

ferred to and worked under it between Watson and Sellersburg that day up to the time of the accident; that there is a junction at Watson used for cars to pass each other; that just before the collision he was at work at Beechwood, nearly a mile north of Watson, where there was an intermediate signal block, but no passing track; that the first passing track north of Watson was at Bridge siding, a mile and a half north of Beechwood, and the next was at Quarry siding, something more than a mile farther north, being more than a mile south of Sellersburg; that at noon that day he ran the work extra to Watson, and there obtained a supply of materials for his work, and, while there, talked to the train dispatcher over the company telephone used for giving and receiving orders saying that he was at Watson with

(145 N.E.)

[6] Instruction No. 19, given at the request | any extras had been ordered into the working of appellee, was as follows: