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Upon the question of attorney's fees, the In that connection it is averred that the point argued was decided in the case of derrick had, by reason of long use, become Terre Haute, etc., R. Co. v. Salisbury (No. weak, cracked, and rotten in all its parts, 5, 622, decided May 29, 1906) 77 N. E. 1097. including attachments at both ends, but if Judgment affirmed.
such averments can be considered as counting upon the defective book, such construc
tion will not avail appellee, there being no (38 Ind. A. 194)
evidence that the defect in the hook was disNEW CASTLE BRIDGE CO. V. STEELE. coverable by inspection. The jury in answer (No. 5,717.)
to interrogatories say that the hooks were in (Appellate Court of Indiana. Division No. 2. good condition when put up; that they had June 6, 1906.)
been in use about two years and that it was 1. MASTER AND SERVANT-INJURIES TO SERV- ordinarily safe to use said hooks for from ANT — NEGLIGENCE-DEFECTIVE APPLIANCES
12 to 15 years, and that they were apparently -INSPECTION. In an action for injuries to a servant the
in good condition just before the accident. master cannot be charged with negligence in There being no negligence shown in regard maintaining a defective derrick hook, without
to the inspection of the attachment which evidence that the defect in the hook was discoverable by inspection.
broke, there was no basis for a verdict, an [Ed. Note.-For cases in point, see vol. 34,
employer not being bound to guard against Cent. Dig. Master and Servant, $$ 243-251.] dangers of a character he cannot foresee, in 2. SAME-CARE REQUIRED.
the exercise of reasonable care. Lake Shore v. A master is not bound to guard against Kurtz, 10 Ind. App. 60, 35 N. E. 201, 37 N. E. dangers to his employés of a character the
303. We are not prepared to say that the apmaster cannot foresee in the exercise of reasonable care.
pellee should not recover, and for that reason [Ed. Note.-For cases in point, see vol. 34,
a new trial will be ordered. Cent. Dig. Master and Servant, & 139.]
Judgment reversed, and cause remanded, 3. SAME-NEGLIGENCE-EVIDENCE-DEFECTIVE
with instructions to sustain appellant's moAPPLIANCES.
tion for a new trial and for further consistPlaintiff, while in defendant's employ, was
ent proceedings. injured by the fall of a derrick alleged to have been caused by the breaking of an iron hook connecting a guy wire to the top of the mast.
(38 Ind. A. 198) The hook was in good condition when put up, had been used about two years, and was ap)- VAN BUSKIRK V. SUMMITVILLE MINparently in good condition just before the acci
ING CO. et al. (No. 5,642.) dent. There was no evidence of negligence in regard to inspecting the hook, and there was
(Appellate Court of Indiana, Division No. 1. evidence that it was ordinarily safe to use such
June 6, 1906.) hooks from 12 to 15 years. Held, that such 1. MECIIANICS' LIENS-FORECLOSURE-SALE. facts did not establish negligence on the part A sale of property on foreclosure of a meof the master.
chanic's lien to one of the lien claimants, un[Ed. Note.-For cases in point, see vol. 34, redeemed from by the owner, freed the property Cent. Dig. Master and Servant, $$ 954-977.] of the lien, and from the date of the sale the
purchaser's rights were those of purchaser only, Appeal from Circuit Court, Marion County; independent of the lien. H. C. Allen, Judge.
[Ed. Note.--For cases in point, see vol. 34, Action by William F. Steele against the Cent. Dig. Mechanics’ Liens, $$ 622, 623.] New Castle Bridge Company. From a judg. 2. JUDICIAL SALES - CAVEAT EMPTOR- RELAment for plaintiff, defendant appeals. Re
While the title acquired by a purchaser of versed.
property sold on foreclosure of a mechanic's lien Elmer E. Stevenson, for appellant. John
relates back to the date the lien became effective,
the purchaser is nevertheless precluded by the M. Bailey and W. E. Bailey, for appellee.
doctrine of caveat emptor from recovering dam
ages for injuries to the property by the owner ROBY, J. Action by appellee for the re
between the date of the filing of the lien and
the date of the sale. covery of damages on account of personal injuries alleged to have been caused to him by Appeal from Superior Court, Madison appellant's negligence. The complaint is in County; Henry C. Ryan, Judge. four paragraphs; the issue was made by Action by Frank Van Buskirk against the general denial. Trial resulted in a verdict Summitville Mining Company and others. for $2,000. Appellant's motion for judgment From a judgment in favor of defendants, on the answers to interrogatories notwith- plaintiff appeals. Affirmed. standing the general verdict was overruled,
John R. Thornburgh and David L. Bishopp, as was also its motion for a new trial.
for appellant. F. E. Holloway (Fredk. Van Appellee was an employé of the appellant Nuys, of counsel), for appellees. as a laborer and was injured by the fall of a derrick. The answers to interrogatories MYERS, J. Appellant in the court below state that the derrick fell because of the
stated his cause of action against appellees breaking of an iron hook connecting a guy in a complaint in two paragraphs. wire to the top of the mast. The negligence The first paragraph shows that on Septemcharged in the complaint is that the timbers ber 22, 1903, appellant became the owner of of the derrick were rotten and insufficient. a natural gas well, tubing, casing, fixtures, etc., by virtue of a deed executed by the sher- foreclosing the lien rendered March 4, 1902, iff of Madison county, Ind., pursuant to and and the property sold to appellant by the in compliance with an order of the Madison sheriff by virtue of said decretal order June superior court in a mechanic's lien foreclo- 28, 1902; that appellant first learned of the sure proceeding instituted and carried on by worthless condition of the well September appellant and one Daniel Van Buskirk; that 23, 1903. by virtue of a decree for the sale of the prop- It is clear from the undisputed facts in this erty, to satisfy a judgment for $68.55, the (ase, that there has been no change in the consheriff of Madison county, on June 28, 1902, dition of the prop?rty since the day of sale by the sold the same to appellant at his bid of $25; sheriff, and its purchase by appellant. It was that the property at the time of the sale was sold at public vendue. Appellant bid for and of the reasonable value of $500; that after bought the interest of the Summitville Minthe sale, and before appellant received a deed ing Company. The execution of the sheriff's therefor, appellees wrongfully and unlawful- deed perfected in him that interest. Watts ly, by pulling the tubing and casing from said
v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 well, and by removing the fixtures attached Am. St. Rep. 615. As a judicial sale purthereto and converting the same to their own chaser appellant's rights must be measured, use, damaged and destroyed said property for as such purchaser only does he make a and rendered it wholly worthless and of no claim. He treats the sale as valid, and value, and to the damage thereof in the sum seeks to recover damages for an injury done of $500. The second paragraph a vers prac- to the property prior to its purchase by him. tically the same facts as stated in the first, As one of the lienholders, he was interested except that it charges that the injury to the
in preserving the property, to the end that property took place some time between the
payment of his claim might be coerced. The filing of the notice of intention to hold a lien sale, unredeemed from by the owner, freed and the day appellant received the sheriff's
the property of the lien, and from that time deed. The issues were closed by a general on his interest was that of a purchaser. denial to each paragraph of the complaint. From the day of the sale he assumed a new The issues thus formed were submitted to a relation to the property, and the fact that he jury for trial, and at the close of appellant's was a party to the decree under which the evidence, at the direction of the court, the
sale was made, will not benefit him in this jury returned a verdict for appellees. Motion
action. As a bidder and purchaser of the for a new trial overruled, and judgment on property, his position was the same as a the verdict of the jury rendered in favor of
stranger, and was bound by the rule of appellees. Error in overruling appellant's
caveat cmptor. Appellant is not seeking to motion for a new trial presents the only avoid the sale and recover the purchase question for our decision.
money on account of fraud or for any other Appellees suggest that the record does not
cause, consequently any claim here on that affirmatively show that the bill of exceptions
account can have no bearing. His position, incorporating the evidence was filed with the
as we understand it, is based upon what the clerk after the same was settled, and by the
courts and law writers designate as the court ordered to be made a part of the rec
doctrine of "relation," whereby the title of a ord. From our examination of the record on
purchaser under a judicial sale relates back this subject, we are of the opinion that the
to the date of the lien. Paxton v. Sterne, evidence is in the record, and that appellee's
127 Ind. 289, 26 N. E. 557; Merritt v. Richey, suggestion is not well founded. Appellant,
127 Ind. 400, 27 N. E. 131; Jarrell v. Bruas reasons for a new trial, claims, that the
baker, 150 Ind. 260, 267, 49 N. E. 1050. The court erred in instructing the jury, over his doctrine of "relation" is applicable to the objection, to return a verdict for appellees; case at bar; for by it appellant's title to the that the verdict is not sustained by sufficient property purchased by him from the sheriff evidence, and is contrary to law. Appellant, is made to relate back to the day the mein support of his complaint, introduced in
chanic's lien became effective. Rorer on evidence the original notice of intention Judicial Sales, $8 191, 366. While this is to hold a mechanic's lien, and all the plead-true, it cannot be used or applied to defeat ings in the case wherein the lien was fore- the elementary and well-settled rule of closed, together with all the proceedings had caveat emptor, nor to create additional rights thereon leading up to and including the sale outside of the subject of the purchase; its of the property to him; also his deed from real office being to secure to the purchaser the sheriff, executed September 22, 1903. the interest of the debtor or owner of the From the undisputed facts, it also appears property or thing as sold, as of the date of that the Summitville Mining Company, the lien attached, thereby "cutting out all interowner of the well in question, about three mediate transfers and encumbrances.” Demor four weeks prior to December 21, 1901, bitz on Land Titles, § 174. We cannot give removed the tubing, casing, and other fix- the doctrine of "relation" the effect and tures from the well, and thereafter aban- broad application appellant here claims for doned it; that the action to foreclose the it, and not to do so is decisive of this appeal mechanic's lien was commenced April 23, against appellant. 1901, and judgment for $68.55, 'and decree Judgment affirmed.
(39 Ind. App. 169)
ROBY, J. Action by appellee; verdict INDIANAPOLIS ST. RY. CO. V. BOLIN. and judgment against appellants for $6,000. (No. 5,371.)*
Their motion for judgment on interrogatories (Appellate Court of Indiana June 7, 1906.) returned by the jury was overruled, as was. 1. STREET RAILROADS USE OF STREET
also their motion for a new trial, and said RECIPROCAL RIGHTS.
rulings are assigned as error. An additional Where a street railroad company is au- | assignment challenges the sufficiency of the thorized to operate its tracks on a city street,
complaint for the first time, but is not supboth the street car company and those traveling on the street in vehicles are required to use
ported by any argument and is therefore the street at all times with just regard to the waived. rights of the other.
The complaint was in four paragraphs. [Ed. Note.-For_cases in point, see vol. 44,
The jury were instructed to find for the deCent. Dig. Street Railroads, $ 193.]
fendant upon the fourth paragraph. The is2. SAME-CROSSING TRACK. The driver of an ordinary vehicle may pro
sue upon the remaining ones was formed by ceed over a street railroad in front of an ap
a general denial. It is charged in the first proaching car when, and only when, he has paragraph that the Indianapolis Street Railreasonable ground for believing that he can
way Company negligently ran one of its cars pass in safety, if both he and those in charge of the car act with reasonable regard to the
along Illinois street in the city of Indianrights of others.
apolis at a dangerous and reckless rate of [Ed. Note.--For cases in point, see vol. 44, speed, to wit, 20 miles per hour, and while so Cent. Dig. Street Railroads, $ 214.]
running at said high and dangerous rate of 3. SAME-NEGLIGENCE-SPEED OF CAR-QUES- | speed negligently ran its car into and against TION FOR JURY.
a horse and buggy driven by appellee, thereWhere, in an action for injuries to the driver of a vehicle in collision with a street car,
by inflicting injuries upon him. In the it was charged that the car was being run at a second paragraph it is charged that the rail. high and dangerous rate of speed, which was way company negligently ran one of its cars the cause of the accident, the issue so tendered
along said street at a dangerous, unusual, was for the jury to determine with reference to existing conditions and circumstances.
and reckless rate of speed, and while so [Ed. Note.-For cases in point, see vol. 44,
running, carelessly and negligently ran said Cent. Dig. Street Railroads, $ 251.]
car into and against the horse which ap4. SAME-ASSUMPTION OF DILIGENCE.
pellee was driving, and buggy in which he A traveler on a street, on which a street was riding, injuring, etc.; that appellee was railway is operated, is entitled to assume that
traveling on the right side of Illinois street, the street car company will exercise ordinary care and diligence to prevent a collision with his
and that when said car was distant several vehicle.
hundred feet from him “and when it was to 5. SAME - CONTRIBUTORY NEGLIGENCE - EVI. him, and would have been to any ordinary DENCE.
person, under similar circumstances in the Plaintiff turned to go across a street car track when the car which struck his vehicle
exercise of ordinary and reasonable care, was 225 feet away and beyond an intersecting
apparently safe to cross the tracks of said street. The car was running at the rate of 20 company, he started across the tracks of miles per hour, and when about 60 feet from plaintiff he first discovered its excessive speed.
said .company, crossing from the east to the He then quickly attempted to turn his horse
west side of said Illinois street; that after aside and avoid a collision, but failed. When plaintiff had gotten across the east track of plaintiff first saw the car he underestimated said defendant company, Indianapolis Street its speed because of the distance, and assumed that it was far enough away to enable him to
Railway Company, and had started across cross. No effort was made by the motorman the west track, he saw that said car was comto check the speed of the car prior to the ac ing at an unusual, excessive, and reckless cident, and it ran 140 feet or more after che
speed, and that the motorman in charge collision before it was stopped. Held, that plaintiff was not guilty of contributory negligence as
thereof was not slackening the speed of the a matter of law.
car, and at said time realizing, the said car 6. SAME-LAST CLEAR CHANCE.
being about 100 feet distant from him, that The doctrine of "last clear chance" is ap he could not safely get across the west track plicable to an action for injuries to the driver of a vehicle which occurred in a collision with
of said defendant company, he turned his an approaching street car.
horse as quickly as he could, to get back into
a position of safety; that the plaintiff imCent. Dig. Street Railroads, 8 219.]
mediately and continuously used his best efComstock, P. J., and Wiley, J., dissenting. forts to get into a position of safety, but,
notwithstanding said effort on his part, the Appeal from Superior Court, Marion Coun
servants of defendant, Indianapolis Street ty; Vinson Carter, Judge.
hailway Company, in charge and control of Action by Lewis Bolin against the Indian
said car, who saw or by the exercise of reaapolis Street Railway Company. From a
sonable care could have seen, plaintiff's dan. judgment for plaintiff, defendant appeals.
ger, and his efforts to get into a position of Affirmed.
safety, made no effort to stop said car, nor F. Winter and W. H. Latta, for appel slacken its speed, nor to prevent a collision lant. Elmer E. Stevenson and Edw. H. with plaintiff's horse and buggy ; that the Knight, for appellee.
servants of defendant, Indianapolis Street • Rehearing denied. Transfer to Supreme Court denied.
[Ed. Note. For cases in point, see vol. 44,
Fallway Company, in charge of said car, speed, has the right to proceed over it before while in the line of their duty, could, in the other, but if it be apparent to the travthe exercise of proper and reasonable care, eler that the motorman does not respect this after they saw, or could by ordinary care right, he must stop and give way, if a colhave seen, that the plaintiff was in a place lision can thus be avoided. Baldwin, Railof danger from which he was trying to es- road Law, 418. “We need scarcely say that cape, have stopped said car or slackened the to justify the sustaining of such a motion speed thereof so as to have avoided the col- [for judgment on the answers to interrogalision, etc.
* And the plaintiff avers tories] the answers must make, out a case that at said time he could have crossed said of such antagonism between them and the gentrack in safety, had not the defendant ran its eral finding on some vital point as not to said car at such a dangerous, unusual, exces- be capable of being removed by any evidence sive, and reckless rate of speed, which man- which would have been admissible under ner of operating said car was not known, and the issues." Indianapolis Street Ry. Co. v. could not have been known, by plaintiff until Marschke, supra. he got into a place of danger on said tracks The answers to interrogatories show that as aforesaid; that, at the instant of colli- there were two car tracks in Illinois street sion, he was using every effort in his power in the city of Indianapolis, 4 feet 842 inches to escape from a situation suddenly rendered apart, the rails of which were laid even with perilous by said negligent acts of said de- the pavement, and that the roadway on each fendant." The third paragraph is substan- side of said tracks was 14 feet wide; that tially the same as the second one, except for cars going south used the west, and those an additional averment that the motorman going north the east, track. Plaintiff was had negligently ran the car at such speed driving a horse and buggy north along the as to lose control thereof, whereby he was east side of the street, and the car, with unable to prevent plaintiff's injury after the which he subsequently came in collision, was danger became apparent to him. One hun- coming from the north. He turned to go dred and eight interrogatories were submit- across the track, intending to go south on the ted to and answered by the jury. The length west side of the street, to a residence at which and multiplicity of said interrogatories not he wished to stop. There was nothing to only render it impracticable to set them out prevent him seeing the car, and nothing to in this opinion, but, because of the necessary prevent the motorman seeing him. From the overlapping of questions in order to make time when he first turned in the direction so many and the resulting conflict in an- of the track, until he was struck, he moved swers, defeat the legitimate and statutory about 15 feet, at the rate of about 4 miles end to which interrogatories to the jury are an hour. The car, when he first began to permitted.
turn, was about 225 feet north of him. IlBoth street car companies and those trav- linois street was intersected by Twentyeling on city streets in other vehicles must Ninth street at a point about 160 feet north use the street at all times with a just regard of him. The car was running at the rate of to the rights of the other. Indianapolis St. 20 miles an hour. When the car was about Ry. Co. v. O'Donnell (Ind. App.) 73 N. E. 60 feet distant he first discovered the rate 163; Howard v. Indianapolis St. Ry. Co., of speed at which it was going, and acted 29 Ind. App. 515, 64 N. E. 890; Indianapolis quickly, in attempting to avoid a collision. St. Ry. Co. v. Marschke (No. 20,830; May The answers do not say in what such action 18, 1906) 77 N. E. 945; Cincinnati St. Ry. consisted. Its particulars are involved in the Co. v. Snell, 54 Ohio St. 197, 43 N. E. 207, 32 motion for a new trial, and are shown by L. R. A. 276; Newark, etc., v. Block, 55 N. the evidence. It is further stated by the J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374; answers that when he first saw the car he Thompson v. Salt Lake, etc., 16 Utah, 281, paid attention to its speed, which he under52 Pac. 92, 40 L. R. A. 172, 67 Am. St. Rep. estimated because of the distance interven. 621; Cogswell v. West Street, etc., 5 Wash. ing; that he did not know it was dangerous 46, 31 Pac. 411; Tacoma R. Co. V. Hayes, to try to cross the track, and was prevented 110 Fed. 496, 49 C. C. A. 115; Cincinnati St. from knowing it because of the distance of Ry. Co. v. Whitcomb, 66 Fed. 915, 14 C. C. A. the car from him, his position in front of 183; Schilling v. Metropolitan, etc., Co. the car, and misjudging its speed; that the (Sup.) 62 N. Y. Supp. 403. The driver of an could not have known in time to have avoidordinary vehicle can proceed over a street ed his accident; that it would be dangerous railway in the face of an approaching car, to try to cross; and that a reasonably pruwhen, and only when, he has reasonable dent man, under the circumstances, would ground for believing that he can pass in not have avoided the accident. The charge safety if both he and those in charge of the in the complaint is that the car was run at car act with reasonable regard to the rights a high and dangerous rate of speed. The of others. The duty to slow up or stop, if issue thus tendered was an issue for the necessary to prevent a collision, rests equally jury, to be determined by it with reference on each party. Under ordinary corcumstan- to existing conditions and circumstances. ces, the first to reach the crossing, if each Citizens' St. Ry. Co. v. Hamer, 29 Ind. App. has been moving at a reasonable rate of 426, 430, 62 N. E. 658, 63 N. E. 778; Chicago
City Ry. Co. v. Robinson, 127 Ill. 9, 18 N. E. | knowledge, either actual or implied, of the
tributory negligence, ought in fairness to is the province or right of the trial court to eliminate his own negligence as a factor by instruct a jury fully, freely, and pointedly on showing that the traveler, in attempting to all matters of law applicable to the case, cross, acted or was bound to act, not with still the court in doing so is not authorized reference to a usual and safe rate of speed, to usurp or intrench upon the findings of but with reference to the high and dangerous the jury in the determining of matters of rate at which the car was being negligently fact." Indianapolis St. Ry. Co. v. Taylor, run. This can ordinarily be done by show164 Ind. 155, 160, 161, 72 N. E. 1045. The ing that the actual rate was known to the language above quoted which so well ex- traveler, or should, under the circumstances, presses the primacy of the jury with regard to have been known to him in the exercise of facts in issue, was directed to the action of ordinary and reasonable care. It necessarily a trial judge in instructing a jury that great- follows that the mere fact that said traveler er care in running a car is required in popu- can see an approaching car, by which he is lous cities and crowded streets than in afterward struck, does not in itself, establish sparsely settled districts upon which there his contributory negligence. The answers are few travelers, and is applicable to ques- to interrogatories, instead of tending to show tions of negligence by a defendant exactly knowledge by appellee of this important facas it is to questions of negligence by a plain- tor in the situation, conform to the general tiff; difference in parties making no differ- verdict. Neither does it appear from the ence in principle. Indianapolis St. Ry. Co. answers to the interrogatories that appellee v. Schmidt (Ind. App.) 71 N. E. 603; India- had reason to apprehend that the motorman napolis St. Ry. Co. v. Marschke, supra. would run the car at a negligent rate of
The general verdict carries with it a finding speed, or that he would fail to stop or check that the car in question was negligently run it at the intersecting crossing or thereafter, at a high and dangerous rate of speed and before the collision. The general verdict this fact must be considered, together with also carries with it a finding that the averall other relevant facts upon the question of ments of the second and third paragraphs contributory negligence by the plaintiff. The of the complaint were proven. These paratraveler has the right to assume that the car graphs proceeded upon a theory which is company will exercise ordinary care and "a phase of the rights and obligations of the diligence to prevent accidents of this charac- parties which arises upon the proofs rather ter. Indianapolis St. Ry. Co. v. Marschke, than by pleading," and which is therefore supra; Indianapolis St. Ry. Co. v. Schmidt, necessarily included in the first paragraph supra; Scofield v. Myers, 27 Ind. App. 375, of complaint (Indianapolis St. Ry. Co. v. 60 N. E. 1005; Mapes v. Union, etc. (Sup.) 67 Marschke, supra), but was, in the case at N. Y. Supp. 358, 361; Rooks v. Houston R. bar, specifically made by the complaint, and Co. (Sup.) 41 N. Y. Supp. 824; Tunison v. the interrogatories are not in irreconcilable Weadock (Mich.) 89 N. W. 703; Montgomery conflict with the verdict, as it has relation V. Lansing, 103 Mich. 60, 61, 61 N. W. 543, to this branch of the case, but also accord 29 L. R. A. 287; Rouse v. Detroit Electric therewith. It is stated the motorman did not Ry, Co., 128 Mich. 149, 87 N. W. 68. Had do everything he could to stop the car and the car in question been thus run, a traveler avoid the injury, after appellee turned to cross driving upon the track in front of it, and in the track. It is found that the car could such proximity as to necessarily result in have been stopped in 60 feet. There was no his injury, could have small excuse. Having showing that the motorman exercised any added to the conditions which ordinarily care, or attempted in any way to control the exist, the element of its own negligence, speed, or stop the car or avoid the collision. the car company, before it can be exonerated It is not stated that he had the car under from liability arising from an injury thus control when he reached the street crossing caused, must bring home to the plaintiff, 160 feet distant, or at any other time. It