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stance of the writings cannot be changed by the erroneous deductions of the pleader. The facts found by the court fully sustain the first conclusion of law stated, that there had been no rescission of the contract in suit.
Appellant contends that there was no evidence that the sale of the farm to Culver was made by appellee. His contract did not require him to make the sale, but only to find and furnish a purchaser to whom a sale could be made by appellant. That he did find and produce such a purchaser is beyond dispute, and, when the sale to such customer was effected, his commission was fully earned. No error was committed in denying appellant's application for a new trial. Storer v. Markley, 164 Ind. 535, 73 N. E. 1081; Miller v. Stevens, 23 Ind. App. 365, 55 N. E. 262; Micks v. Stevenson, 22 Ind. App. 475, 51 N. E. 492; Mullen v. Bower, 22 Ind. App. 294, 53 N. E. 790; Mullen v. Bower, 26 Ind. App. 253, 59 N. E. 419.
No error appearing, the judgment is affirmed.
(168 Ind. 438) PITTSBURGH, C., C. & ST. L. RY. CO. v.
LIGHTHEISER. (No. 20,582.)1 (Supreme Court of Indiana. Oct. 31, 1906.) 1. CONSTITUTIONAL LAW - Ex POST FACTO LAW.
The constitutional provision prohibiting the passage of ex post facto laws is only applicable to criminal and penal laws, and does not apply to an employers' liability act.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, $$ 550, 551.] 2. APPEAL-FORMER DECISION-LAW OF TIIE CASE.
Where, on a prior appeal of an action for injuries to a servant, it was held that the employers' liability act of 1893 was not unconstitutional, either as impairing the obligation of contracts between employer and employé, or as an ex post facto law, such decision constituted the law of the case on retrial.
[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $$ 4661-4665.] 3. TRIAL - GENERAL VERDICT INTERROGATORIES.
Unless answers to special interrogatories are in irreconcilable conflict with the general verdict. when aided by all reasonable presumptions, the general verdict will be sustained.
[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, $$ 857–860.] 4. SAME.
Where, in an action for injuries to an engineer, the jury found, in answer to certain interrogatories, that plaintiff, while going across defendant's north-bound track and while standing between the tracks, listened for a train, and that there was something to prevent him from seeing and hearing the approaching engine and car that struck him in time to avoid the injury, answers to other interrogatories that there was no evidence to show that plaintiff could not see and hear the train that struck him in time to have avoided the injury did not establish that plaintiff was guilty of such contributory negligence as would vitiate a general verdict in his favor.
Ed. Note.-- For cases in point, see vol. 46, Cent. Dig. Trial, $$ 857-860.]
1 Rehearing denied,
5. SAME-INCONSISTENT ANSWERS.
Where answers to special interrogatories submitted to a jury are inconsistent, or so uncertain that their meaning cannot be ascertained, they antagonize each other, and cannot affect the general verdict.
[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, $ 856.] 6. MASTER AND SERVANT-INJURIES TO SERV
ANT RAILROADS — EMPLOYERS' LIABILITY ACT_VICE PRINCIPAL.
Burns' Ann. St. 1901, § 7083, provides that every railroad or other corporation operating in the state shall be liable for personal injuries suffered by any employé while in the service, exercising due care, if the injury was caused by the negligence of any person in the service of such corporation having charge of any signal, telegraph office, switchyard, shop, roundhouse, locomotive engine, or train upon a railway, etc. Held, that such act enlarged the class of vice principals previously existing, and under it railroad corporations were liable for injuries to a servant caused by the negligence of an employé in charge of any signal, etc.
TEd. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, $8 371-373.] 7. SAME-ASSUMED RISK.
The defense of assumed risk is not available in an action against a railway company for injuries to an employé caused by a fellow servant in charge of a locomotive engine on a railway, under the employers' liability act (Burns' Ann. St. 1901, § 7083, subd. 4), making railroad companies liable for injuries to servants caused by the negligence of any person in the service of the corporation in charge of any signal, locomotive engine, train, etc.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $$ 544-546.) 8. CORPORATIONS CORPORATE EXISTENCE ADMISSION.
A corporation, by a general appearance to an action brought against it, admits its corporate existence.
[Ed. Note.-For cases in point, see vol. 12, Cent. Dig. Corporations, 8 2003.] 9. MASTER AND SERVANT-INJURIES TO SERVANT-EMPLOYMENT.
Where plaintiff at the time of his injury was in the employ of defendant railroad company as a passenger engineman, and was standing between defendant's east and west bound main tracks, where he had gone to take charge of his own engine when it backed down to be connected with defendant's passenger train, he was engaged in defendant's service when injured, within the employers' liability act (Burns' Ann. St. 1901, $ 7083), imposing a liability on railroad corporations for injuries sustained by servants through the negligence of certain fellow servants engaged in the operation of the railroad.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $$ 144-156, 362366.] 10. SAME CITY ORDINANCES VIOLATION NEGLIGENCE PER SE.
Failure of the operatives of a railroad train to observe certain city ordinances regulating the operation of railroads within the limits of the city constitutes negligence per se sufficient to sustain a recovery for injuries to another servant proximately caused thereby, in the absence of proof of contributory negligence. 11. SAME-RULES-VIOLATION.
In an action for injuries to a servant of a railroad company, plaintiff's violation of a rule of the company at the time he was injured would not prevent a recovery, unless the violation of such rule proximately contributed to his injury.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $ 799.]
12. SAME-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.
In an action for injuries to an engineer by being struck by a mail car while standing between two tracks at night, evidence held to require submission of the question of his contributory negligence in occupying such place to the jury. 13. SAME_"LOOK AND LISTEN" RULE.
The "look and listen" rule, applicable to travelers at railroad crossings, does not apply in all strictness to railroad employés required to remain on or about the track. 14. CONSTITUTIONAL LAW-CONTRACT OBLIGA
TION_IMPAIRMENT-EMPLOYERS' LIABILITY Аст.
Where, in an action for injuries to an engineer, there was no evidence of an express contract of employment, except that plaintiff entered defendant's service in 1874 as a passenger engineman, and continued in such service until his injury in January, 1901, the employers' liability act of 1893, making railroad companies liable for injuries to servants caused by the negligence of certain fellow servants, was not unconstitutional in so far as it applied to plaintiff's cause of action, as violating constitutional provisions prohibiting the impairment of the obligation of contracts. 15. EVIDENCE-DEMONSTRATIVE EVIDENCE-INJURED MEMBER—EXHIBITION TO JURY.
In an action for injuries to a servant, it was not error for the court to permit plaintiff to exhibit his injured foot to the jury, and to testify that it was stiff at the ankle joint, and by movements show the effects of the injury on his ability to use it.
[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, $ 677.] 16. SAME-CARLISLE MORTALITY TABLES.
In an action for permanent injuries to a railroad employé, it was not error for the court to admit the Carlisle Tables of Mortality in evidence.
[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, $ 1520; vol. 15, Cent. Dig. Damages, § 489; vol. 15, Cent. Dig. Death, 8 84.] 17. TRIAL-INSTRUCTIONS-FORM.
An instruction, in an action for injuries, that plaintiff was entitled to recover, if the jury found from a preponderance of the evidence that the material allegations of the complaint were proven, without specifying what the material allegations were, was not erroneous as submitting to the jury questions of both law and fact.
[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, $8 527-529.] 18. SAME-DEFINITION OF ISSUES—INSTRUCTIONS-DUTY TO REQUEST.
Mere failure of the court to state the issues in its instructions is not error; it being the duty of a party, desiring specific instructions defining the issues, to prepare and submit a proper request therefor.
[Ed. Note.--For cases in point, see vol. 46, Cent. Dig. Trial, $$ 478, 479, 527.] 19. MASTER AND SERVANT-INJURIES TO SERVANT-CARE REQUIRED OF SERVANT.
Where a railroad engineer was struck and injured while standing between two main tracks at night, an instruction that he was required to exercise such care as persons of ordinary care and prudence would exercise under like circumstances properly stated plaintiff's duty in the premises.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $ 674.] 20. NEGLIGENCE-SEVERAL ACTS-PROOF.
Where several acts of negligence were sufficiently alleged in the complaint, plaintiff was
entitled to recover if he established that the injury complained of was the result of any one or more of such acts.
[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, § 203.] 21. APPEAL - ASSIGNMENTS OF ERROR INSTRUCTIONS.
An objection in appellant's statement of points that the instructions given by the court, of its own motion and at the request of appellee, were indefinite, uncertain, and inapplicable to the evidence, without stating how or in what respect any one of the instructions was indefinite, etc., was insufficient.
[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $8 3093, 3096.] 22. TRIAL INTERROGATORIES - READING TO JURY-DISCUSSION OF EVIDENCE.
Where special interrogatories are to be submitted to the jury, it is proper for counsel to read and comment on them to the jury, and to array the evidence necessary to be considered in answering them. 23. SAME-MISCONDUCT OF COUNSEL – REMEDIES.
Where counsel for plaintiff erroneously told the jury how to answer certain of the interrogatories which were to be submitted, defendant was only entitled to have the jury sufficiently admonished without delay that such statement should not be considered, and was not entitled to have the jury discharged.
[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, $ 316.] 24. SAME-CURING ERROR.
Misconduct of counsel in advising the jury how to answer certain of the interrogatories to be submitted to them was cured by an instruction that the interrogatories should be answered according to the preponderance of the evidence.
[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, 316.] 25. New TRIAL-DAMAGES — EXCESSIVENESSPREJUDICE.
A verdict will not be disturbed because of excessive damages, unless the damages are so excessive as to indicate that the jury acted from prejudice, partiality, or corruption.
[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, $$ 153-156.] 26. CONSTITUTIONAL LAW-FEDERAL CONSTI
TUTION--DUE PROCESS OF LAW-APPLICATION.
Const. U. S. Amend. 5, providing that no person shall be deprived of life, liberty, or property without due process of law, operates merely as a restriction on federal power, and has no application to the states.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 727.] 27. SAME — PRIVILEGES AND IMMUNITIES OF CITIZENS-CORPORATIONS.
Corporations are not citizens of the United States, within Const. U. S. Amend. 14, providing that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, $ 627.] 28. SAME-EMPLOYERS' LIABILITY ACT.
Employers' Liability Act 1893 (Burns' Ann, St. 1901, § 7083 et seq.), providing that every railroad or other corporation operating within the state shall be liable for injuries to employés caused by the negligence of certain other employés in charge of any signal, telegraph office, switchyard, shop, roundhouse, locomotive engine, or train on a railroad, etc., was not unconstitu
tional as a deprivation of property without due terrogatories notwithstanding the general process of law.
verdict; and (3) the motion for a new trial. [Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, $ 857.]
This court on the former appeal correctly
held (163 Ind. 256–262, 71 N. E. 218, 660) that 29. SAME-EQUAL PROTECTION OF LAWS.
the second paragraph of complaint was foundSuch act should not be construed as limited to corporations operating railroads, but to ap- ed upon the employers' liability act (section ply as well to every corporation, company, co- 7083 et seq., Burns' Ann. St. 1901), and that partnership, or person engaged in railroad opera
it was sufficient to withstand a demurrer for tion, and their employés, and, as so construed, was not unconstitutional as depriving railroad
want of facts. It appears from said second corporations of the equal protection of the laws. paragraph that appellee was in the employ
[Ed. Note.For cases in point, see vol. 10, of appellant as locomotive engineer, and that Cent. Dig. Constitutional Law, $ 702.)
he received the injuries sued for in the city 30. APPEAL STATEMENT OF POINTS-ERRORS of Logansport, Ind., during the nighttime, by Not RAISED.
being knocked down and run over by a train, An alleged error or point, not contained in
consisting of a locomotive and mail car beappellant's statement of points, cannot be afterwards, raised, either by reply brief, in the
longing to · appellant, which was being run oral or printed argument, or on petition for re- backwards in appellant's yards. It is averhearing, but will be considered waived as pro- red in said paragraph that appellee had been vided by Supreme Court Rule 22, cl. 5 (55 N. E. vi).
ordered to make a trip upon appellant's road; [Ed. Note.-For cases in point, see vol. 3,
“that in obedience to said order plaintiff, Cent. Dig. Appeal and Error, $8 4256-4261.]
as was his duty under his employment, took
his position between the track on which his Appeal from Circuit Court, Cass County ;
locomotive was standing and the track on T. F. Palmer, Special Judge.
which said locomotive and mail car were Action by George W. Lightheiser against
(the mail car being in front) for the purpose the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment
of examining, accepting, taking charge, and
assuming control, as locomotive engineer, of for plaintiff, defendant appeals. Affirmed.
his said locomotive, that the said locomotive G. E. Ross, for appellant. Frederick Lan- began to move east, and at the same time said dis, Nelson, Myers & Yarlott, and McConnell, locomotive and mail car passed him, leaving Jenkines, Jenkines & Stuart, for appellee. a space of but four feet between said mail
car, which was in front, and his locomotive, MONKS, J. Appellee. brought this action
where he might stand.” It is further alto recover damages for personal injuries sus
leged that while appellee was occupying this tained by him while in the service of appel. position, “as it was his duty to do under
" lant by reason of being knocked down ana
his employment,” he was knocked down and run over by appellant's train at its station
run over by said mail car and locomotive in the city of Logansport, Ind. This is the engine. Said paragraph counts on the negsecond appeal of said cause. Pittsburgh,
ligence of the engineer in control of the locoetc., Ry. Co. v. Lightheiser, 163 Ind. 247,
motive which was moving the mail car. He 71 N. E. 218, 660. On the former appeal
is charged with negligently moving said mail the second paragraph of complaint was held
car backwards without a person stationed on sufficient upon demurrer. The other para
the forward end thereof, so as to perceive graphs of the complaint, being the first,
the first sign of danger and to signal the third, and fourth were held insufficient, and
engineer, as required by a rule of appellant. the cause reversed for that reason. When Said engineer is also charged with negligence the cause was returned to the court below,
in moving said locomotive and mail car in appellee filed an amendment first paragraph
violation of certain ordinances of the city of of complaint. Appellant's demurrer thereto Logansport. It is also alleged that appellee for want of facts was overruled. After is- was knocked down and run over by said sues were joined the cause was tried by a
car as a result of the negligence pleaded. jury, and a general verdict returned in favor
Said amended first paragraph of complaint of appellee. The jury also found specially
is founded on the fourth subdivision of the upon particular questions of fact stated to employers' liability act, and is the same as the them in writing in the form of interrogato- second paragraph correctly held good on the ries, submitted by the court under section former appeal, except it pleads the violation of 555, Burns' Ann. St. 1901 (Acts 1897, p. 128,
four additional rules of the company not menC. 85). Over a motion by appellant for judg
tioned in the second paragraph. On the forment in its favor on the answers to the in- mer appeal one of the many objections made terrogatories notwithstanding the general
by appellant's counsel to said second paragraph verdict, and over a motion for a new trial, of complaint was "that, as it appeared therethe court rendered judgment on the general from that appellee had been continuously in verdict in favor of appellee. The errors as- the employment of appellant as a locomotive signed call in question the action of the engineer for 27 years, the employers' liability court in overruling (1) the demurrer to the act of 1893 is unconstitutional in such a case amended first paragraph of complaint; (2) as amounting to an attempt to impair the obthe motion for a judgment in favor of ap- ligation of a contract in violation of section 24 pellant on the answers of the jury to the in- of article 1 of the state Constitution and sec. tion 10 of article 1 of the Constitution of the engine on the morning he was injured at apUnited States, which probibits the passing pellant's shops about one mile east of its pasof any 'ex post facto' law or law impairing senger station, and ran such engine down to che obligation of contract.” On this appeal the passenger station, where he alighted to he contends that for the same reason said get his orders; that he knew of the location employers' liability act violates the ex post and use of appellant's tracks; that the rules facto clause of the said sections. It is held of the company required him, after receiving that the phrase "ex post facto laws" is his orders, to go and take charge of his enonly applicable to criminal and penal laws, gine; that he received his orders at 3:23 a. m., and not to laws like the one in controversy but that he did not go to his engine, although in this case. Cooley's Constitutional Limita- he had ample time and opportunity; that it tions (7th Ed.) 373–376. But, if it were oth- was customary for appellant to use the easterwise, what was said by this court on the bound main track while a train was standing former appeal as to the contention then at the passenger platfora on the north-bound made is a sufficient answer to the one now track; that the space between the two tracks made. This court said (163 Ind. 262, 71 N. E. was sufficient for plaintiff to stand and not 218, 660): “It is enough to dispose of this be injured by passing trains; that the jury objection to state that it does not appear that found, in answer to interrogatories 131 and there was any such definitive agreement be- 133, that there is no evidence to show that tween the parties for the future as would
the appellee could not see and hear the apwarrant the assertion that any contract right proaching train that struck him in time to bad been impaired." Upon the authority of have avoided the injury." Counsel for apthe opinion on the former appeal, we hold pellant insists that, "when the jury found the that said amended first paragraph is suffi- facts above stated, they found that apppellee cient, and that the court did not err in over- saw and heard the approaching train, beruling the appellant's demurrer thereto.
cause the law assumes he saw and heard it, Appellant next insists that the court be- if the view is obstructed and there is no low erred in overruling the motion for judg. evidence that he did not see and hear it. If ment in its favor on the answers of the jury the facts above set out are true, appellee not to the interrogatories notwithstanding the only assumed the risk which caused his ingeneral verdict. The general verdict neces- jury but he is guilty of contributory neglisarily determined all material issues in favor
gence. Said facts cannot be true and the of appellee, and it is well settled that, unless general verdict stand." the answers of the jury to the interrogatories
It is not necessary to determine what are in irreconcilable conflict with the general effect, if any, the facts stated by appellant's verdict, the court did not err in overruling counsel as found by the jury would have the appellant's motion for judgment in its upon the general verdict, for the reason that favor. The answers to the interrogatories the jury also found other and additional facts cannot be aided by any presumptions, for in answers to interrogatories which show the rule is that all reasonable presumptions that appellee, while going across the northwill be indulged in favor of the general ver- bound main track, or while standing be dict, and none will be indulged in favor of tween the two tracks, listened to see if he the answers to the interrogatories. The could hear whether a train of cars was apspecial findings of the jury in answer to the proaching; that he could not have seen the interrogatories override the general verdict engine and car approaching, if he had looked only when both cannot stand; the conflict be- carefully and diligently; that there was ing such that upon the face of the record as something to prevent appellee seeing and to be beyond the possibility of being removed hearing the approaching engine and car by any evidence admissible under the issues which struck him, in time to avoid the inin the cause. Johnson v. Gibhauer, 159 Ind. jury. In view of these additional facts, it 271, 282, 283, 64 N. E. 855, and cases cited; cannot be said that the jury found that apIndiana, etc., Ry. Co. v. Maurer, 160 Ind. 25, pellee's view was not obstructed, nor that 27, 66 N. E. 156; Southern, etc., Ry. Co. v. appellee saw and heard the approaching train Peyton, 157 Ind. 690, 697, 61 N. E. 722; City as claimed by counsel for appellant. If said of Jeffersonville v. Gray, 165 Ind. 26, 29, 74 answers of the jury to interrogatories are N. E. 611, and cases cited; McCoy v. Kokomo inconsistent or contradictory, they antagonize Ry. V. Light Co., 158 Ind. 662–664, 64 N. E. and destroy each other and they cannot con92, and cases cited. Appellant claims that
trol the general verdict. Wabash Ry. Co. the jury's answers to interrogatories show v. Savage, 110 Ind. 156, 161, 9 N. E. 85; that “appellee entered appellant's employ in Baltimore, etc., Ry. Co. v. Rowan, 104 Ind. 1874 as locomotive engineman; that he serv- 88, 96, 97, 3 N. E. 627; McCoy v. Kokomo ed as such for 10 years; that 17 years prior Ry Co., 158 Ind. 662, 665, 64 N. E. 92, and to January 19, 1901, the date when he receiv
cases cited. If they are so uncertain that ed the injuries sued for, he was promoted to their meaning cannot be ascertained, they passenger engineman, and that he served cannot be used to control the general verdict. appellant as such continuously up to the time Grand Rapids, etc., R. Co. v. McAnnally, 98 of his injuries; that he took charge of his Ind. 412, 417, and cases cited. It is clear,
under the rules above stated, as established by the decisions of this court, that the facts found by the jury as above set out are not in irreconcilable conflict with the general verdict, which found that appellee was not guilty of contributory negligence.
The part of section 7083, Burns' Ann. St. 1901, being section 1 of the act known as the "Employers' Liability Act” (Acts 1893, p. 294, c. 130), under which this action was brought, is as follows: “That every railroad or other corporation except municipal operating in this state shall be liable for damages for personal injury suffered by any employé wbile in its service, the employé so injured being in exercise of due care and diligence, in the following cases: * * * Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switchyard, shop, roundhouse, locomotive engine or train, upon a railway," etc. It is evident that the language above quoted from said fourth subdivision of said section describes a class of servants for whose negligence railroads are made liable. In other words, it enlarged the class of vice principals as it had existed before said act took effect, and under the provisions thereof railroads are liable for the negligence of such employés; that is, any person in the service of such company who has charge of any signal, telegraph office, switchyard, roundhouse, locomotive engine, or train upon a railway the same as for the negligence of vice principals. Baltimore Ry, Co. V. Little, 149 Ind. 167, 170–172, 48 N. E. 862; Ind. Union Ry. Co. v. Houlihan, 157 Ind. 494, 499, 60 N. E. 943, 54 L. R. A. 787, and cases cited; Thacker v. Chicago, etc., Ry. Co., 159 Ind. 82, 84–86, 64 N. E. 605, 59 L. R. A. 792. It is clear that the doctrine of assumed risk is not applicable to an action brought, like this, under the part of said fourth subdivision above quoted. To hold otherwise would establish in its full vigor the fellow servant rule, which the statute was intended to abrogate as to the employés mentioned. American Rolling Mills Co. v. Hullinger, 161 Ind. 673, 679, 680, 67 N. E. 986, 69 N. E. 460; Davis v. N. Y., N. H. & H. Ry. Co., 159 Mass. 532, 536, 34 N. E. 1070; Murphy v. City Coal Co., 172 Mass. 324, 52 N. E. 503; Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 South. 440; Southern Ry. Co. v. Johnson, 114 Ga. 329, 40 S. E. 235; St. Louis Ry. Co. v. Touhey, 67 Ark. 209, 54 S. W. 577, 77 Am. St. Rep. 109; 2 Labatt's Master & Servant, § 650, and note; Reno's Employers' Liability Acts (2d Ed.) $$ 249, 230. It is evident that the court did not err in overruling appellant's motion for a judgment in its favor on the answers to the interrogatories.
Appellant contends that "the evidence is wholly insufficient to sustain the verdict for the following reasons, and each of them,
viz.: (a) That the defendant was, at the time complained of, 'a railroad or or other corporation.' (b) That the plaintiff was, at the time he was injured, at a place wbere he had a right to be and in the performance of his duties. (c) That plaintiff's injury wag the result of any act or omission of any employé of the defendant in the performance of his duties, while in charge of a locomotive engine or train upon defendant's railway. (a) That plaintiff did not assume the risk which brought about his injury. (e) The evidence conclusively shows plaintiff to have been guilty of contributory negligence. (f) No duty is shown to have been violated which the defendant owed the plaintiff. (g) There is no evidence to show that if there had been a flagman with a light on the end of the car, or the train had been run slower, or the bell rung, that the plaintiff would have seen or heard the train and would not have been injured. (h) There is no evidence that the plaintiff was ordered to go between the tracks, or that such place was where his duties required him to be. (i) The evidence is undisputed that plaintiff was perfectly familiar with the defendant's tracks and their use, the distance between the tracks, that the engine taken from the incoming train was usually backed east along the east-bound track to the shops, while the train it brought in was still standing at the station on the north-bound track, and that it was dangerous to be between the tracks."
It is well settled that a corporation, by a general appearance to an action brought against it, admits its corporate existence, and estops itself from denying the same. Adams Ex. Co. v. Hill, 43 Ind. 157, 162; Ohio Oil Co. v. Deta more, 165 Ind. 243, 247, 73 N. E. 906; Seaton v. C., R. I. & P. Ry. Co., 55 Mo. 416; Chicago & Alton Ry. Co. v. Glenny, 175 Ill. 238, 51 N. E. 896; Perris Irr. Dist. v. Thompson, 116 Fed. 832, 54 C. C. A, 336; Gauthier Decorating Co. v. Ham, 3 Colo. App. 559, 34 Pac. 484; Mo. Riv., Ft. Scott & Gulf Ry. Co. v. Shirley, 20 Kan. 664; Baldwin Coal Co. V. Davis, 15 Colo. App. 371, 62 Pac. 1041; U. S. Express Co. v. Bedbury, 34 Ill. 459, 467; 5 Ency. of Pl. & Pr. 90; 6 Thompson on Corporations, $$ 7645, 7646; 10 Cyc. 1347; 3 Cyc. of Evidence, p. 613, and cases cited. If a corporation, by a
, general appearance, as by filing an answer, admits that it is a corporation and is thereby estopped from denying that it is a corporation as alleged in the complaint, it is evident that it is not necessary for the plaintiff to introduce any evidence to prove such allegation. Adams Express Co. v. Hill, 43 Ind. 162. It follows, also, that the court's instruction to the jury that no proof of such allegation was necessary was correct. To maintain an action under the part of the fourth subdivision of section 7083, supra, appellee must have been actually engaged in the sery