appellant corporation has no just ground of complaint. It exercised its authority over the public library of said city by virtue of law, and from the same authority there has now emanated a provision whereby the management of said library may be taken over by a board of trustees appointed by a majority vote of the members of the common council. As was said in Carson v. State ex rel., 27 Ind. 465, 469, "It is in the power of the Legislature at any time to change the trustee." See, also, School Town of Leesburgh v. Plain School Township, 86 Ind. 582, 586. Judgment affirmed.

Burns' Ann. St. 1901, § 4052 (Acts 1895, p. 292, c. 135), declares that the laws of the state concerning the assessment of property for taxation and the collection of taxes and the sale of property for delinquent taxes, the enforcement by foreclosure or other proceedings, so far as the same are not in conflict with the act, shall apply to cities governed thereby. Held, that Acts 1903, pp. 230, 231, c. 132 (Burns' Ann. St. Supp. 1905, §§ 8603a-8603c), applying to cities having a certain population, which includes the city of Evansville, and providing that, whenever lands have been offered for sale for delinquent taxes by the treasurer of the proper county for two successive years and no person shall have bid therefor a sum equal to the delinquent taxes thereon, etc., the county treasurer shall at the next regular tax sale sell the same to the highest bidder, applies to such city, though the city was authorized by Burns' Ann. St. 1901, § 4052a, in force at the time Acts 1903, p. 230, c. 132, was passed, to collect delinquent taxes by foreclosure of the lien thereon and to sell the real estate on decree to the highest bidder.

2. SAME-REPEAL.

Burns' Ann. St. 1901, § 4052a, authorizes cities of a certain population in cases where real estate has been offered for sale three times for delinquent taxes, to bring suit to foreclose the lien, and sell the property to the highest bidder on execution, etc. Burns' Ann. St. Supp. 1905, §§ 8603a-8603c, declares that when land in such cities has been offered for sale for delinquent taxes for two successive years without receiving the bid required by law, it may be sold by the County Treasurer at the next regular tax sale to the highest bidder. Held, that there was no conflict between such acts, and that the latter, therefore did not repeal the former.

Appeal from Superior Court, Vanderburgh County; Alex Gilchrist, Judge.

Application for a writ of mandate by the state, on relation of Oscar G. Miller, against August Leich, treasurer of the city of Evansville, to compel respondent to accept the amount bid by petitioner and for which he purchased a certain tract of real estate in the city of Evansville at the regular tax sale of lots and lands situated in that city for delinquent taxes thereon February 8, 1904, which lot was offered for sale for delinquent taxes by the city treasurer for two successive years next preceding 1904, for which no per

son had bid a sum or sums equal to the delinquent taxes thereon, interest, and penalty, and for which petitioner was the highest bidder and purchaser, etc. From an order denying the application, petitioner appeals. Reversed.

George A. Cunningham and O. W. McGinnis, for appellant. A. J. Veneman, for appellee.

MONKS, J. The controlling question in this case is whether the act of 1903, Acts 1903, pp. 230, 231, c. 132, being sections 8603a8603c, Burns' Ann. St. Supp. 1905, applied to cities having a population of more than 50,000 and less than 100,000 inhabitants, to which class the city of Evansville belonged. Sections 3905-4053, Burns' Ann. St. 1901 (Acts 1893, p. 65, c. 59; Acts 1895, p. 258, c. 135). Section 1 of said act of 1903, being section 8603a, Burns' Ann. St. Supp. 1905, provides "that whenever any lands have been or shall hereafter be offered for sale for delinquent taxes, interest and penalty by the treasurer of the proper county for any two successive years and no person shall have bid therefor a sum equal to the delinquent taxes thereon, interest and penalty provided by law, then such county Treasurer shall at the next regular tax sale of lands for delinquent taxes in the year 1904, sell the same to the highest bidder, and the purchaser thereof shall acquire thereby the same interest therein as is acquired by purchasers of other lands at such delinquent tax sales." If said act applied to the city of Evansville when this controversy arose in 1904, this case must be reversed; otherwise, it must be affirmed. Section 148 of the act governing the city of Evansville in 1904, being section 4052, Burns' Ann. St. 1901, expressly provides that "The laws of the state of Indiana concerning the assessment of property for taxation and the collection of taxes and the sale of property for delinquent taxes, the enforcement by foreclosure or other proceedings, so far as the same are not in conflict with this act," shall apply to the cities governed thereby.

Appellee insists (1) that said act of 1903 (Acts 1903, pp. 230, 231, c. 132; sections 8603a8603c, Burns' Ann. St. Supp. 1905) did not apply to the city of Evansville because said section 148, supra (Acts 1895, p. 292, c. 105; section 4052, Burns' Ann. St. 1901), which adopted the laws of the state concerning taxation, adopted only the laws in force when the act containing said section 148 (section 4052), supra, was passed in 1895 (Acts 1895, p. 292, c. 105). The general rule is that when a statute adopts a part or all of another statute by a specific and descriptive reference thereto, such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications of the statute unless it does so by express intent. 2 Lewis' Sutherland, Stat. Const. 405; Endlich on Interpretation of

Statutes, § 85, and cases in note 107; 26 Am. & Eng. Ency. of Law (2d Ed.) p. 714; Culver v. People, 161 Ill. 89, 96, 97, 43 N. E. 812, and cases cited. But when the adopting statute makes no reference to any particular statute or part of statute by its title or otherwise, but refers to the law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of the adopting act but also all subsequent laws upon the particular subject referred to. 26 Am. & Eng. Ency, of Law, pp. 714, 715, and cases cited in note 1; Id. p. 751; Endlich on Interpretation of Statutes, § 493; Lewis' Sutherland, Statutory Const. pp. 789, 790; Culver v. People, 161 Ill. 89, 96, 97, 43 N. E. 812; Snell v. City of Chicago, 133 Ill. 413, 24 N. E. 532, 8 L. R. A. 858; Newman v. City of North Yakima, 7 Wash. 220, 34 Pac. 921; Ford v. Durie, 8 Wash. 87, 35 Pac. 595, 1082; Gaston v. Lamkin, 115 Mo. 20, 33, 21 S. W. 1100; City of St. Louis v. Gunning Co., 138 Mo. 347, 353, 354, 39 S. W. 788; Cole v. Donovan, 106 Mich. 692, 64 N. W. 741; Kugler's Appeal, 55 Pa. 123; Harris v. White, 81 N. Y. 532; Jones v. Dexter, 6 Fla. 276. There is nothing in said act of 1903 (Acts 1903, pp. 230-231, c. 132; sections 8603a-8603c, Burns' Ann. St. Supp. 1905) excepting that act from the operation of section 148 (4052), supra.

Appellee insists, however, that it was not the intention of the Legislature that said act of 1903 (Acts 1903, pp. 230-231, c. 132; sections 8603a-8603c, Burns' Ann. St. Supp. 1905) should apply to the city of Evansville, because there was a statute (Acts 1901, pp. 73-75, c. 52; section 4052a, Burns' Ann. St. 1901) in force authorizing the city to collect delinquent taxes by foreclosure of the lien thereof on real estate, and the sale of said real estate on such decree to the highest bidder. The act of 1901 referred to authorized cities of more than 50,000 and less than 100,000 inhabitants, as shown by the last preceding United States census, in cases where real estate had been offered for sale three times for delinquent taxes, to bring suit and foreclose the lien thereof on such real estate. Upon the decree foreclosing such lien the real estate is sold as other lands are sold, upon execution, without relief and without stay, and the city can become the purchaser of the real estate so sold, and can own, hold, and dispose of the same. Under this act (1901) the lien for delinquent taxes could only be foreclosed against real estate when the same had been offered for sale three times, while under the act of 1903 land that had been offered for sale for delinquent taxes for two successive years without receiving the bid required by law, could be sold for delinquent taxes to the highest bidder, but only at the regular tax sale of 1904. There was no conflict between the two acts, and it is evident the latter did not repeal the former. We think it clear that by the terms of section 148 (4052), supra, said

The averment in the complaint in an action for injury to an employé from an asserted defective condition of the working place, on which negligence was based, that defendant had full knowledge of all the matters and things averred in the premises, is sufficient, without a specific averment of defendant's knowledge as to each particular item.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 832.] 2. SAME ASSUMPTION OF RISK.

An employé, knowing of the existence of · a safety device which the master had established and maintained for years, does not assume the risk of the master permitting it to become and remain out of order, of which he had no knowledge or notice.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 574-600.] 3. SAME-CONTRIBUTORY NEGLIGENCE.

Where a locomotive engineer knew of a safety device which his employer had maintained for years on a side track, and which, when in condition, prevented cars escaping onto the main track, and did not have knowledge or means of knowledge that the master had permitted it to become and remain out of repair, he is not guilty of contributory negligence, as matter of law, in not observing, on account of a prevailing storm, increased care in approaching the place to avoid accident from a car which, on account of the want of repair of the device and the storm, had escaped onto the main track.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 706-709.] 4. SAME-NEGLIGENCE-INSTRUCTIONS.

An instruction, in an action for injury to a locomotive engineer from collision with a car which during a storm had blown from a siding onto the main track, that plaintiff could recover if the derail switch was out of order to the knowledge of the railroad company, plaintiff being ignorant thereof, is erroneous, as impliedly denying the company's right to employ any other kind of device than a derail switch to prevent cars from escaping from the siding, when there was evidence that, after the car was placed on the siding, it was so locked and fastened by the brake as to render it immovable by the wind, except in case of an unusual and extraordinary storm.

5. TRIAL AMBIGUOUS INSTRUCTION.

An instruction which, in the first part, states in a general way that plaintiff must prove that his injuries resulted from negligence of defendant in failing to maintain a derail switch, but in the concluding part states "the essential elements to be proved by plaintiff, in order that he may recover, are that the derail switch arrangement was defective, that plaintiff did not know of said condition, and that the company had notice or knowledge of the same, then, in addition, if you find the plaintiff was not guilty of contributory negligence, he has made out his case and should recover,"

is at least ambiguous, and calculated to confuse and mislead.

6. MASTER AND SERVANT ASSUMPTION OF RISK-KNOWLEDGE-INSTRUCTIONS.

An employé to recover for injury from negligence of the master, to show that he did not assume the risk, must prove want of knowledge, both actual and imputed, of the condition; and an instruction merely that he must show that he "did not know of such condition," is objectionable as limiting his want of knowledge to actual knowledge.

Appeal from Circuit Court, La Porte County; Jno. C. Richter, Judge.

Action by Robert Melrose against the Grand Trunk Western Railway Company. Judgment for plaintiff. Defendant appealed to the Appellate Court, from whence the case is transferred under Burns' Ann. St. 1901, § 1337u, to the Supreme Court. Reversed and remanded.

Saml. Parker and Anderson, Du Shane & Crabill, for appellant. F. E. Osborn and Brick & Bates, for appellee.

HADLEY, J. This action was brought by the appellee, Robert Melrose, a locomotive engineer, to recover damages for personal injuries received by him while in the employ of the appellant. The accident, in which appellee was injured, occurred on April 25, 1902. At the time he was the engineer in charge of the engine which was drawing a passenger train from Chicago to Battle Creek, Mich., over appellant's railroad, which runs through the village of Haskells, Ind. The train was due at Haskells at 10:20 p. m., but was a few minutes behind time. A violent wind and rain storm was prevailing at Haskells at that time. The train passed through the village and was moving rapidly, when, at a point about two miles east of that station, it collided with an empty box car standing on the track. The collision caused the engine to leave the track and fall on its side. The appellee did not escape from the engine, but went over with it, was caught and held in the wreckage, and thereby sustained the injuries of which he complains. At Haskells and beyond the railroad runs almost due east and west. the place named, on the north side of the main track appellant has a side track 1,800 feet long that connects at the east end with the main track. This side track was used, among other things, for the storage of cars. For three or four years prior to the middle of February, 1902, this siding had a derailing switch connecting it, at the east end, with the main track. At the time of the accident, owing to the accumulations of ice and snow, rendering the switch difficult of operation, the loose rail of the derailing device was spiked up to the rail on the main track and the derail was thereby rendered inoperative. At some time shortly before the accident, an empty box car was run in on this siding and left standing on the side track. On the day of the accident a freight train crew, in the employ of appellant, had occasion to

pull this car out of the siding onto the main track in order to get some cars from behind it. After getting the other cars out, this empty box car was "kicked" in on the siding and ridden to its place by a brakeman of the freight train crew, who applied the brake and stopped it and left it. The point on the siding where the box car was left was about 16 inches lower than the east end of the siding where it connected with the main track, and about 400 feet distant therefrom. At 9:50 p. m. of April 25, 1902, the box car was still on the side track and the main track was clear. At that time a freight train running east had passed Haskells Station, and, proceeding eastward, passed the place where the collision occurred. When appellee arrived with his train the storm that was then raging at that place blew from a southwest to a northeasterly direction, did considerable damage to buildings, trees, fences, and telegraph lines in the vicinity of Haskells, and was raging at the time of collision. After the passage of the freight above mentioned, from some cause, the box car alluded to above was passed out of the siding onto the main track and driven eastward, and was overtaken and struck by appellant's train, which caused the accident. Such of the above facts as are relied upon by plaintiff

as

constituting appellant's liability, are stated in four different ways, in so many paragraphs of complaint; each paragraph proceeding upon the theory that the box car was blown from its place on the siding out on the main track and to the point where the collision occurred. Each paragraph of complaint was held to be good on demurrer and appellant answered the general denial. There was a verdict and judgment for appellee. The overruling of the several demurrers to the complaint and appellant's motion for a new trial give rise to the questions presented.

1. The principal objection urged against the first and second paragraphs is the want, in each, of a sufficient averment that appellant had knowledge, either actual, or imputed, that the box car was left on the siding unfastened and unguarded, and liable to be forced out on the main track; and knowledge that the main track was obstructed with the box car before the arrival of the express driven by the plaintiff. The discussion here invited by counsel for appellant, and which has heretofore had extended consideration by this court, involves the questions-whether it is necessary to the complaint in such cases to allege knowledge in the master, when it is shown by averments that the asserted defective condition of the working place, and upon which the negligence relied on is based, was created by the affirmative act or omission of the master and plainly open to observation? or whether the rule requiring averments of knowledge in the master, applies only to latent defects and perils? For an elaborate collection of cases upon these sub

jects, see Indiana Oil Co. v. O'Brien, 160 Ind. 271, 65 N. E. 918, 66 N. E. 742; Railroad Co. v. Duel, 134 Ind. 156, 33 N. E. 355. These interesting questions become unimportant here because, as we view the first and second paragraphs, knowledge in the defendant is sufficiently alleged to withstand a demurrer. Among other things it is averred in these paragraphs "that said side track was so constructed and connected, and operated with defendant's main track, that cars left, or stored upon said side track, would, when pulled or pushed by a locomotive engine, or when moved in any other manner, pass from said side track to and upon the main track." It is further alleged "that, in order to properly protect the public in the use of its said railway line and to guard against accidents and collisions with trains upon its main lines, and to protect the lives and limbs of its employés in charge of the trains operated upon said railway lines, it is, and ever since defendant has owned and operated said railway line it has been, necessary that defendant use care in the use and operation of its switches and side track aforesaid to prevent collisions of cars with trains running upon its main track, and that no cars be placed upon said side track or be permitted to stand thereon in such manner that trains passing upon and along its main line might collide with said car, or in such a manner that said car might be pushed or forced or in any other way run out of said side track to and upon the main track of said defendant company, and thereby be permitted to collide with trains being operated upon said main line; that on said date the defendant had full knowledge of all of the matters and things averred in the premises; that on said 25th day of April, 1902, and before the time for the train and engine, operated by the plaintiff, was due to pass said station aforesaid, and to pass over that part of defendant's said main line east of Haskells aforesaid, the defendant, by its representatives, agents, employés and servants in charge of a train of freight cars on its said railroad, placed and caused to be placed upon its aforesaid side track at and near the aforesaid station of Haskells, an empty car, well knowing at the time that plaintiff was operating and running its train as aforesaid upon its main line and track as aforesaid, and well knowing that if said car should, in any manner, leave or be permitted to leave said side track, and in any manner or way be removed or permitted to be removed, or pushed or pulled from said side track to and upon the main line of said defendant company, that the said car would collide with the engine and train in plaintiff's charge, and that great loss of life and personal injury would be the probable result thereof." It is also shown that the defendant had used the side track at Haskells for the setting and storage of cars for more than a year, and had full knowledge of all the facts in the premises alleged in the several paragraphs.

The general averment of knowledge is distributive in its meaning, and, we think, fairly relates to the nature of the side track; its relation to the main track; the construction, office, and operation of the derailing device; the spiking and fastening of the derail so it could not be used to prevent the passage of cars from the side to the main track; that the freight car was left on the side track unguarded, and that, without the use of the derail, cars stored, or set on the side track, and left unfastened and unguarded, were liable to be moved by the wind or other power out on to the main track. The matter of the defendant's knowledge is further shown by the averment that the defendant failed to keep the main track clear, "well knowing" at the time that the train in charge of the plaintiff would pass, and "well knowing" that if any substantial obstruction was permitted on the main track a serious collision would occur, and "with full knowledge of the facts alleged in the premises, permitted an empty freight car to drift out of the side track on to the main track." It is not necessary that the defendant's knowledge should be specifically averred to each particular item. Railroad Co. v. Krapf, 143 Ind. 647, 655, 36 N. E. 901; Railroad Co. v. Jones, 108 Ind. 551, 555, 9 N. E. 476. The allegations concerning the defendant's knowledge contained in the first and second paragraphs of the complaint, we think, were sufficient to call for an answer, and if indefinite or unsatisfactory to the defendant, it had its ample remedy by motion. No other objection to these paragraphs is pointed out, and we think they were each clearly good.

2. The third and fourth paragraphs of the complaint are closely allied, and differ from the first and second in predicating actionable negligence upon the defendant's failure to maintain, in good repair, a derailing device previously constructed by it on the east end of the side track. It is averred that the purpose of the derail was as a safety device to prevent cars or trains from running from the side track to and upon the main track, and was So arranged that cars could not possibly pass from the side track to the main track without some one in charge to operate the derail; that said derail was constructed, kept in repair, and operated by the defendant for many years as a part of its railroad system, and known to and relied upon by the plaintiff, but his duties as the engineer of an express train did not require him to run his train into or over said side track, and he did not know or have the means of knowing that said derail had been spiked and fastened and rendered useless, and he fully believed it was in good working order. About two months prior to April 25, 1902, the defendant negligently failed to maintain the derail in working order, and negligently spiked and fastened it as a part of the continuous rail of the side track, so that said derail could not be disconnected to prevent cars on the siding from being forced out on the main