Upon the question of attorney's fees, the point argued was decided in the case of Terre Haute, etc., R. Co. v. Salisbury (No. 5, 622, decided May 29, 1906) 77 N. E. 1097. Judgment affirmed. (38 Ind. A. 194) NEW CASTLE BRIDGE CO. v. STEELE. (No. 5,717.) (Appellate Court of Indiana. Division No. 2. June 6, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-NEGLIGENCE-DEFECTIVE APPLIANCES -INSPECTION. In an action for injuries to a servant the master cannot be charged with negligence in maintaining a defective derrick hook, without evidence that the defect in the hook was discoverable by inspection. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 243-251.] 2. SAME-CARE REQUIRED. A master is not bound to guard against dangers to his employés of a character the master cannot foresee in the exercise of reasonable care. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 139.] 3. SAME-NEGLIGENCE-EVIDENCE-DEFECTIVE APPLIANCES. Plaintiff, while in defendant's employ, was injured by the fall of a derrick alleged to have been caused by the breaking of an iron hook connecting a guy wire to the top of the mast. The hook was in good condition when put up, had been used about two years, and was apparently in good condition just before the accident. There was no evidence of negligence in regard to inspecting the hook, and there was evidence that it was ordinarily safe to use such hooks from 12 to 15 years. Held, that such facts did not establish negligence on the part of the master. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 954-977.] Appeal from Circuit Court, Marion County; H. C. Allen, Judge. Action by William F. Steele against the New Castle Bridge Company. From a judgment for plaintiff, defendant appeals. Reversed. Elmer E. Stevenson, for appellant. John M. Bailey and W. E. Bailey, for appellee. ROBY, J. Action by appellee for the recovery of damages on account of personal injuries alleged to have been caused to him by appellant's negligence. The complaint is in four paragraphs; the issue was made by general denial. Trial resulted in a verdict for $2,000. Appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict was overruled, as was also its motion for a new trial. Appellee was an employé of the appellant as a laborer and was injured by the fall of a derrick. The answers to interrogatories state that the derrick fell because of the breaking of an iron hook connecting a guy wire to the top of the mast. The negligence charged in the complaint is that the timbers of the derrick were rotten and insufficient. In that connection it is averred that the derrick had, by reason of long use, become weak, cracked, and rotten in all its parts, including attachments at both ends, but if such averments can be considered as counting upon the defective hook, such construction will not avail appellee, there being no evidence that the defect in the hook was discoverable by inspection. The jury in answer to interrogatories say that the hooks were in good condition when put up; that they had been in use about two years and that it was ordinarily safe to use said hooks for from 12 to 15 years, and that they were apparently in good condition just before the accident. There being no negligence shown in regard to the inspection of the attachment which broke, there was no basis for a verdict, an employer not being bound to guard against dangers of a character he cannot foresee, in the exercise of reasonable care. Lake Shore v. Kurtz, 10 Ind. App. 60, 35 N. E. 201, 37 N. E. 303. We are not prepared to say that the appellee should not recover, and for that reason a new trial will be ordered. Judgment reversed, and cause remanded, with instructions to sustain appellant's motion for a new trial and for further consistent proceedings. (38 Ind. A. 198) VAN BUSKIRK v. SUMMITVILLE MIN- 1. MECHANICS' LIENS-FORECLOSURE-Sale. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, §§ 622, 623.] 2. JUDICIAL SALES CAVEAT EMPTOR- RELA TION. While the title acquired by a purchaser of property sold on foreclosure of a mechanic's lien relates back to the date the lien became effective, the purchaser is nevertheless precluded by the doctrine of caveat emptor from recovering damages for injuries to the property by the owner between the date of the filing of the lien and the date of the sale. Appeal from Superior Court, Madison County; Henry C. Ryan, Judge. Action by Frank Van Buskirk against the Summitville Mining Company and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed. John R. Thornburgh and David L. Bishopp, for appellant. F. E. Holloway (Fredk. Van Nuys, of counsel), for appellees. MYERS, J. Appellant in the court below stated his cause of action against appellees in a complaint in two paragraphs. The first paragraph shows that on September 22, 1903, appellant became the owner of a natural gas well, tubing, casing, fixtures, etc., by virtue of a deed executed by the sheriff of Madison county, Ind., pursuant to and in compliance with an order of the Madison superior court in a mechanic's lien foreclosure proceeding instituted and carried on by appellant and one Daniel Van Buskirk; that by virtue of a decree for the sale of the property, to satisfy a judgment for $68.55, the sheriff of Madison county, on June 28, 1902, sold the same to appellant at his bid of $25; that the property at the time of the sale was of the reasonable value of $500; that after the sale, and before appellant received a deed therefor, appellees wrongfully and unlawfully, by pulling the tubing and casing from said well, and by removing the fixtures attached thereto and converting the same to their own use, damaged and destroyed said property and rendered it wholly worthless and of no value, and to the damage thereof in the sum of $500. The second paragraph avers practically the same facts as stated in the first, except that it charges that the injury to the property took place some time between the filing of the notice of intention to hold a lien and the day appellant received the sheriff's deed. The issues were closed by a general denial to each paragraph of the complaint. The issues thus formed were submitted to a jury for trial, and at the close of appellant's evidence, at the direction of the court, the jury returned a verdict for appellees. Motion for a new trial overruled, and judgment on the verdict of the jury rendered in favor of appellees. Error in overruling appellant's motion for a new trial presents the only question for our decision. Appellees suggest that the record does not affirmatively show that the bill of exceptions incorporating the evidence was filed with the clerk after the same was settled, and by the court ordered to be made a part of the record. From our examination of the record on this subject, we are of the opinion that the evidence is in the record, and that appellee's suggestion is not well founded. Appellant, as reasons for a new trial, claims that the court erred in instructing the jury, over his objection, to return a verdict for appellees; that the verdict is not sustained by sufficient evidence, and is contrary to law. Appellant, in support of his complaint, introduced in evidence the original notice of intention to hold a mechanic's lien, and all the pleadings in the case wherein the lien was foreclosed, together with all the proceedings had thereon leading up to and including the sale of the property to him; also his deed from the sheriff, executed September 22, 1903. From the undisputed facts, it also appears that the Summitville Mining Company, the owner of the well in question, about three or four weeks prior to December 21, 1901, removed the tubing, casing, and other fixtures from the well, and thereafter abandoned it; that the action to foreclose the mechanic's lien was commenced April 23, 1901, and judgment for $68.55, and decree 78 N.E.-14 foreclosing the lien rendered March 4, 1902, and the property sold to appellant by the sheriff by virtue of said decretal order June 28, 1902; that appellant first learned of the worthless condition of the well September 23, 1903. It is clear from the undisputed facts in this case, that there has been no change in the condition of the property since the day of sale by the sheriff, and its purchase by appellant. It was sold at public vendue. Appellant bid for and bought the interest of the Summitville Mining Company. The execution of the sheriff's deed perfected in him that interest. Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St. Rep. 615. As a judicial sale purchaser appellant's rights must be measured, for as such purchaser only does he make a claim. He treats the sale as valid, and seeks to recover damages for an injury done to the property prior to its purchase by him. As one of the lienholders, he was interested in preserving the property, to the end that payment of his claim might be coerced. The sale, unredeemed from by the owner, freed the property of the lien, and from that time on his interest was that of a purchaser. From the day of the sale he assumed a new relation to the property, and the fact that he was a party to the decree under which the sale was made, will not benefit him in this action. As a bidder and purchaser of the property, his position was the same as a stranger, and was bound by the rule of caveat emptor. Appellant is not seeking to avoid the sale and recover the purchase money on account of fraud or for any other cause, consequently any claim here on that account can have no bearing. His position, as we understand it, is based upon what the courts and law writers designate as the doctrine of "relation," whereby the title of a purchaser under a judicial sale relates back to the date of the lien. Paxton v. Sterne, 127 Ind. 289, 26 N. E. 557; Merritt v. Richey, 127 Ind. 400, 27 N. E. 131; Jarrell v. Brubaker, 150 Ind. 260, 267, 49 N. E. 1050. The doctrine of "relation" is applicable to the case at bar; for by it appellant's title to the property purchased by him from the sheriff is made to relate back to the day the mechanic's lien became effective. Rorer on Judicial Sales, §§ 191, 366. While this is true, it cannot be used or applied to defeat the elementary and well-settled rule of caveat emptor, nor to create additional rights outside of the subject of the purchase; its real office being to secure to the purchaser the interest of the debtor or owner of the property or thing as sold, as of the date of lien attached, thereby "cutting out all intermediate transfers and encumbrances." Dembitz on Land Titles, § 174. We cannot give the doctrine of "relation" the effect and broad application appellant here claims for it, and not to do so is decisive of this appeal against appellant. Judgment affirmed. (39 Ind. App. 169) INDIANAPOLIS ST. RY. CO. v. BOLIN. (No. 5,371.)* (Appellate Court of Indiana. June 7, 1906.) 1. STREET RAILROADS USE OF STREET RECIPROCAL RIGHTS. Where a street railroad company is authorized to operate its tracks on a city street, both the street car company and those traveling on the street in vehicles are required to use the street at all times with just regard to the rights of the other. [Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 193.] 2. SAME-CROSSING TRACK. The driver of an ordinary vehicle may proceed over a street railroad in front of an approaching car when, and only when, he has reasonable ground for believing that he can pass in safety, if both he and those in charge of the car act with reasonable regard to the rights of others. [Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 214.] 3. SAME-NEGLIGENCE-SPEED OF CAR-QUESTION FOR JURY. Where, in an action for injuries to the driver of a vehicle in collision with a street car, it was charged that the car was being run at a high and dangerous rate of speed, which was the cause of the accident, the issue so tendered was for the jury to determine with reference to existing conditions and circumstances. [Ed. Note. For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 251.] 4. SAME ASSUMPTION OF DILIGENCE. A traveler on a street, on which a street railway is operated, is entitled to assume that the street car company will exercise ordinary care and diligence to prevent a collision with his vehicle. 5. SAME CONTRIBUTORY NEGLIGENCE - EVIDENCE. Plaintiff turned to go across a street car track when the car which struck his vehicle was 225 feet away and beyond an intersecting street. The car was running at the rate of 20 miles per hour, and when about 60 feet from plaintiff he first discovered its excessive speed. He then quickly attempted to turn his horse aside and avoid a collision, but failed. When plaintiff first saw the car he underestimated its speed because of the distance, and assumed that it was far enough away to enable him to cross. No effort was made by the motorman to check the speed of the car prior to the accident, and it ran 140 feet or more after the collision before it was stopped. Held, that plaintiff was not guilty of contributory negligence as a matter of law. 6. SAME LAST CLEAR CHANCE. The doctrine of "last clear chance" is applicable to an action for injuries to the driver of a vehicle which occurred in a collision with an approaching street car. [Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 219.] Comstock, P. J., and Wiley, J., dissenting. Appeal from Superior Court, Marion County; Vinson Carter, Judge. Action by Lewis Bolin against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. F. Winter and W. H. Latta, for appellant. Elmer E. Stevenson and Edw. H. Knight, for appellee. ROBY, J. Action by appellee; verdict and judgment against appellants for $6,000. Their motion for judgment on interrogatories returned by the jury was overruled, as was also their motion for a new trial, and said rulings are assigned as error. An additional assignment challenges the sufficiency of the complaint for the first time, but is not supported by any argument and is therefore waived. The complaint was in four paragraphs. The jury were instructed to find for the defendant upon the fourth paragraph. The issue upon the remaining ones was formed by a general denial. It is charged in the first paragraph that the Indianapolis Street Railway Company negligently ran one of its cars along Illinois street in the city of Indianapolis at a dangerous and reckless rate of speed, to wit, 20 miles per hour, and while so running at said high and dangerous rate of speed negligently ran its car into and against a horse and buggy driven by appellee, thereby inflicting injuries upon him. In the second paragraph it is charged that the railway company negligently ran one of its cars along said street at a dangerous, unusual, and reckless rate of speed, and while so running, carelessly and negligently ran said car into and against the horse which appellee was driving, and buggy in which he was riding, injuring, etc.; that appellee was traveling on the right side of Illinois street, and that when said car was distant several hundred feet from him "and when it was to him, and would have been to any ordinary person, under similar circumstances in the exercise of ordinary and reasonable care, apparently safe to cross the tracks of said company, he started across the tracks of said company, crossing from the east to the west side of said Illinois street; that after plaintiff had gotten across the east track of said defendant company, Indianapolis Street Railway Company, and had started across the west track, he saw that said car was coming at an unusual, excessive, and reckless speed, and that the motorman in charge thereof was not slackening the speed of the car, and at said time realizing, the said car being about 100 feet distant from him, that he could not safely get across the west track of said defendant company, he turned his horse as quickly as he could, to get back into a position of safety; that the plaintiff immediately and continuously used his best efforts to get into a position of safety, but, notwithstanding said effort on his part, the servants of defendant, Indianapolis Street Lailway Company, in charge and control of said car, who saw or by the exercise of reasonable care could have seen, plaintiff's dan ger, and his efforts to get into a position of safety, made no effort to stop said car, nor slacken its speed, nor to prevent a collision with plaintiff's horse and buggy; that the servants of defendant, Indianapolis Street Rehearing denied. Transfer to Supreme Court denied. Railway Company, in charge of said car, while in the line of their duty, could, in the exercise of proper and reasonable care, after they saw, or could by ordinary care have seen, that the plaintiff was in a place of danger from which he was trying to escape, have stopped said car or slackened the speed thereof so as to have avoided the collision, etc. And the plaintiff avers that at said time he could have crossed said track in safety, had not the defendant ran its said car at such a dangerous, unusual, excessive, and reckless rate of speed, which manner of operating said car was not known, and could not have been known, by plaintiff until he got into a place of danger on said tracks as aforesaid; that, at the instant of collision, he was using every effort in his power to escape from a situation suddenly rendered perilous by said negligent acts of said defendant." The third paragraph is substantially the same as the second one, except for an additional averment that the motorman had negligently ran the car at such speed as to lose control thereof, whereby he was unable to prevent plaintiff's injury after the danger became apparent to him. One hundred and eight interrogatories were submitted to and answered by the jury. The length and multiplicity of said interrogatories not only render it impracticable to set them out in this opinion, but, because of the necessary overlapping of questions in order to make so many and the resulting conflict in answers, defeat the legitimate and statutory end to which interrogatories to the jury are permitted. Both street car companies and those traveling on city streets in other vehicles must use the street at all times with a just regard to the rights of the other. Indianapolis St. Ry. Co. v. O'Donnell (Ind. App.) 73 N. E. 163; Howard v. Indianapolis St. Ry. Co., 29 Ind. App. 515, 64 N. E. 890; Indianapolis St. Ry. Co. v. Marschke (No. 20,830; May 18, 1906) 77 N. E. 945; Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197, 43 N. E. 207, 32 L. R. A. 276; Newark, etc., v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374; Thompson v. Salt Lake, etc., 16 Utah, 281, 52 Pac. 92, 40 L. R. A. 172, 67 Am. St. Rep. 621; Cogswell v. West Street, etc., 5 Wash. 46, 31 Pac. 411; Tacoma R. Co. v. Hayes, 110 Fed. 496, 49 C. C. A. 115; Cincinnati St. Ry. Co. v. Whitcomb, 66 Fed. 915, 14 C. C. A. 183; Schilling v. Metropolitan, etc., Co. (Sup.) 62 N. Y. Supp. 403. The driver of an ordinary vehicle can proceed over a street railway in the face of an approaching car, when, and only when, he has reasonable ground for believing that he can pass in safety if both he and those in charge of the car act with reasonable regard to the rights of others. The duty to slow up or stop, if necessary to prevent a collision, rests equally on each party. Under ordinary corcumstances, the first to reach the crossing, if each has been moving at a reasonable rate of speed, has the right to proceed over it before the other, but if it be apparent to the traveler that the motorman does not respect this right, he must stop and give way, if a collision can thus be avoided. Baldwin, Railroad Law, 418. "We need scarcely say that to justify the sustaining of such a motion [for judgment on the answers to interrogatories] the answers must make out a case of such antagonism between them and the general finding on some vital point as not to be capable of being removed by any evidence which would have been admissible under the issues." Indianapolis Street Ry. Co. v. Marschke, supra. The answers to interrogatories show that there were two car tracks in Illinois street in the city of Indianapolis, 4 feet 81⁄2 inches apart, the rails of which were laid even with the pavement, and that the roadway on each side of said tracks was 14 feet wide; that cars going south used the west, and those going north the east, track. Plaintiff was driving a horse and buggy north along the east side of the street, and the car, with which he subsequently came in collision, was coming from the north. He turned to go across the track, intending to go south on the west side of the street, to a residence at which he wished to stop. There was nothing to prevent him seeing the car, and nothing to prevent the motorman seeing him. From the time when he first turned in the direction of the track, until he was struck, he moved about 15 feet, at the rate of about 4 miles an hour. The car, when he first began to turn, was about 225 feet north of him. Illinois street was intersected by TwentyNinth street at a point about 160 feet north of him. The car was running at the rate of 20 miles an hour. When the car was about 60 feet distant he first discovered the rate of speed at which it was going, and acted quickly, in attempting to avoid a collision. The answers do not say in what such action consisted. Its particulars are involved in the motion for a new trial, and are shown by the evidence. It is further stated by the answers that when he first saw the car he paid attention to its speed, which he underestimated because of the distance interven. ing; that he did not know it was dangerous to try to cross the track, and was prevented from knowing it because of the distance of the car from him, his position in front of the car, and misjudging its speed; that the could not have known in time to have avoided his accident; that it would be dangerous to try to cross; and that a reasonably prudent man, under the circumstances, would not have avoided the accident. The charge in the complaint is that the car was run at a high and dangerous rate of speed. The issue thus tendered was an issue for the jury, to be determined by it with reference to existing conditions and circumstances. Citizens' St. Ry. Co. v. Hamer, 29 Ind. App. 426, 430, 62 N. E. 658, 63 N. E. 778; Chicago City Ry. Co. v. Robinson, 127 Ill. 9, 18 N. E. 772, 4 L. R. A. 126, 11 Am. St. Rep. 87; Thompson v. Salt Lake, etc., Co., supra; Cincinnati St. Ry. Co. v. Snell, supra; Roberts v. Spokane R. Co., 23 Wash. 325, 63 Pac. 506, 54 L. R. A. 184; Robbins v. Springfield St. Ry. Co., 165 Mass. 30, 42 N. E. 334; Lawler v. Hartford St. Ry. Co., 72 Conn. 74, 82, 43 Atl. 545; Woodland v. New Jersey St. Ry. Co., 66 N. J. Law, 456, 49 Atl. 479; Indianapolis St. Ry. Co. v. Darnell, 32 Ind. App. 687, 68 N. E. 609. "Whether the appellant, at the time of the accident, had exercised the care which the law exacted, in the operation of its car, was a question of fact to be determined by the jury under all the circumstances and evidence in the case applicable to that point. * * * While it is the province or right of the trial court to instruct a jury fully, freely, and pointedly on all matters of law applicable to the case, still the court in doing so is not authorized to usurp or intrench upon the findings of the jury in the determining of matters of fact." Indianapolis St. Ry. Co. v. Taylor, 164 Ind. 155, 160, 161, 72 N. E. 1045. The language above quoted which so well expresses the primacy of the jury with regard to facts in issue, was directed to the action of a trial judge in instructing a jury that greater care in running a car is required in populous cities and crowded streets than in sparsely settled districts upon which there are few travelers, and is applicable to questions of negligence by a defendant exactly as it is to questions of negligence by a plaintiff; difference in parties making no difference in principle. Indianapolis St. Ry. Co. v. Schmidt (Ind. App.) 71 N. E. 663; Indianapolis St. Ry. Co. v. Marschke, supra. The general verdict carries with it a finding that the car in question was negligently run at a high and dangerous rate of speed and this fact must be considered, together with all other relevant facts upon the question of contributory negligence by the plaintiff. The traveler has the right to assume that the car company will exercise ordinary care and diligence to prevent accidents of this character. Indianapolis St. Ry. Co. v. Marschke, supra; Indianapolis St. Ry. Co. v. Schmidt, supra; Scofield v. Myers, 27 Ind. App. 375, 60 N. E. 1005; Mapes v. Union, etc. (Sup.) 67 N. Y. Supp. 358, 361; Rooks v. Houston R. Co. (Sup.) 41 N. Y. Supp. 824; Tunison v. Weadock (Mich.) 89 N. W. 703; Montgomery v. Lansing, 103 Mich. 60, 61, 61 N. W. 543, 29 L. R. A. 287; Rouse v. Detroit Electric Ry. Co., 128 Mich. 149, 87 N. W. 68. Had the car in question been thus run, a traveler driving upon the track in front of it, and in such proximity as to necessarily result in his injury, could have small excuse. Having added to the conditions which ordinarily exist, the element of its own negligence, the car company, before it can be exonerated from liability arising from an injury thus caused, must bring home to the plaintiff, | knowledge, either actual or implied, of the excessive speed and resulting danger. It was heretofore said by this court, in a similar case, that "when appellee turned to go upon the crossing the car was more than 160 feet away. He did not know a car was approaching at the rate of 40 miles per hour. Had he seen the car when that distance away, and there was nothing to lead him to believe that it was running any faster than the ordinary rate of speed, his attempt to cross the track in front of the car, would not have been, as matter of law, negligence." Union Traction Co. v. Vandercook, 69 N. E. 486, 488; Indianapolis St. Ry. Co. v. O'Donnell, supra. The defendant, seeking to establish contributory negligence, ought in fairness to eliminate his own negligence as a factor by showing that the traveler, in attempting to cross, acted or was bound to act, not with reference to a usual and safe rate of speed, but with reference to the high and dangerous rate at which the car was being negligently run. This can ordinarily be done by showing that the actual rate was known to the traveler, or should, under the circumstances, have been known to him in the exercise of ordinary and reasonable care. It necessarily follows that the mere fact that said traveler can see an approaching car, by which he is afterward struck, does not in itself, establish his contributory negligence. The answers to interrogatories, instead of tending to show knowledge by appellee of this important factor in the situation, conform to the general verdict. Neither does it appear from the answers to the interrogatories that appellee had reason to apprehend that the motorman would run the car at a negligent rate of speed, or that he would fail to stop or check it at the intersecting crossing or thereafter, before the collision. The general verdict also carries with it a finding that the averments of the second and third paragraphs of the complaint were proven. These paragraphs proceeded upon a theory which is "a phase of the rights and obligations of the parties which arises upon the proofs rather than by pleading," and which is therefore necessarily included in the first paragraph of complaint (Indianapolis St. Ry. Co. v. Marschke, supra), but was, in the case at bar, specifically made by the complaint, and the interrogatories are not in irreconcilable conflict with the verdict, as it has relation to this branch of the case, but also accord therewith. It is stated the motorman did not do everything he could to stop the car and avoid the injury, after appellee turned to cross the track. It is found that the car could have been stopped in 60 feet. There was no showing that the motorman exercised any care, or attempted in any way to control the speed, or stop the car or avoid the collision. It is not stated that he had the car under control when he reached the street crossing 160 feet distant, or at any other time. It |