closed by the bill of exceptions embodying the gross was made from the bill of exceptions instructions appeared to be in gross.

imbodying the instructions, wherein it ap.. [Ed. Note.--For cases in point, see vol. 3, pears that the exception was in gross. The Cent. Dig. Appeal and Error, § 2857.]

instructions of which appellant complains, of 2. NEGLIGENCE-ACTIONS-PROVINCE OF JURY -INVASION.

the series given on the motion of the PennIn an action for injuries to a passenger in

sylvania Company, are Ta, Tb, 7d, 7e, and 7g. a collision between two trains at a crossing, an Instruction 7 is very lengthy, in the first part

of which the court called the attention of the that, if the jury found that such facts existed, jury to several undisputed facts, and then they constituted negligence, was not objectionable as invading the province of the jury. said: "In the light of these undisputed facts, [Ed. Note.-For cases in point, see vol. 37, | I instruct you as follows:

I instruct you as follows: (a) If the BaltiCent. Dig. Negligence, $$ 279, 358.]

more & Ohio train had passed over the cross3. RAILROADS-ACCIDENT TO TRAINS-COLLI- ing in going northwardly on the Baltimore SIONS-ACTIONS-INSTRUCTIONS.

& Ohio tracks, and had gone a sufficient cisIn an action for injuries to a passenger in a collision between two railroad trains at a

tance north of the crossing to allow a clearcrossing, the court charged that if, after the ance for the Pennsylvania train in making passage of the B. & 0. train over the crossing, use of the crossing; if, after said Baltimore the flagman so adjusted the signal as to display

& Ohio train had so gone said distance north a white light westwardly along the P. track, and the red light northwardly along the B.

of the crossing, said John Ledger, for the pur& O. track, after which the B. &0. train pose of allowing the Pennsylvania train to was_backed into the P. train at the crossing, pass over the crossing, so adjusted said signal the B. & 0. trainmen were guilty of negligence. The court further charged that if, after the

as to display the white light westwardly B. & 0. train had gone to a point of safety along the Pennsylvania track and the reď north of the crossing, it was backed to the light northwardly along the Baltimore & Ohio point of collision in violation of the signal track, and therefore the operatives of said *not to cross" by the flagman displaying the red color against it, and that a collision oc

Baltimore & Ohio train caused the same curred in which plaintiff was injured without

to be backed in the direction of the crossing, his fault, plaintiff was entitled to

and to such proximity of said crossing that against the B. & 0. Company, regardless of

it was brought in collision with the Pennwhether the P. Company was liable or not. Held, that the latter instruction construed with

sylvania train while such Pennsylvania train the former was not erroneous as predicating was passing over the crossing in compliance plaintiff's right to recover on the sole fact of the

with said signal, then I instruct you that the signal being set against the B. & 0. train.

Baltimore & Ohio Company was not in the 4. SAME-PROVINCE OF JURY. Plaintiff was injured in a collision between

exercise of ordinary care, but was guilty of two trains at a crossing. The court charged negligence. (b) It will not do to say that the that the fact that the P. train stopped before operatives on the Baltimore & Ohio train reaching the crossing did not justify the opera. tives of the B. & O. train in backing to the

did not see the signal not to cross, if such point of collision in violation of a signal signal was, in fact, given. It was the duty

. against it, but that the statute made it the of the operatives of the train to know that duty of the operatives of the P. train so to

the signal was not against them before the stop, and that the ston did not authorize the B. & 0. operatives to presume that the P.

train was backed to the point of collision, and train would remain standing while they were their failure to know this, if the signal was, making use of the crossing in violation of the

in fact, properly given, would amount to signal. Held, that such instruction was not erroneous as invading the province of the jury negligence. (d) Nor will it do to say that on the issue of negligence.

the operatives of the Baltimore & Ohio train On rehearing. Petition for rehearing over

backed the train to the point of collision ruled.

after seeing the signal not to cross, if they in

fact saw the same. For former opinion, see 76 N. E. 1015.

If they did this after

seeing the signal they were guilty of negliWILEY, J. Appellant has petitioned for a gence. (e) If you find from the evidence rehearing upon the ground that exceptions that, after the Baltimore & Ohio train had taken by it to a series of instructions tender- gone to a point of safety north of the crossing, ed by the Pennsylvania Company—a defend- the same was backed to the point of collision, ant below-and given by the court, were in in violation of the signal ‘not to cross' given gross, and not separate and several, and in by John Leilger by displaying the red color holding that as some of them, at least, were against the said Baltimore & Ohio train from correct statements of the law, we could not said system; and that a collision occurred beconsider those that appellant claims are er- į tween the Baltimore & Ohio train and the car roneous. A several exception to each of such in which plaintiff was carried as the result instructions was orally taken, as appears of said backing; and that as a result of said from an orderbook entry, and this being true collision, and without fault on plaintiff's part, the exception thus reserved is sufficient, un- plaintiff suffered the injuries described in the der the act of March 9, 1903, to bring in re- complaint, or some of them, then I instruct view on appeal, under a motion for a new that upon the issue joined between plaintiff trial, such instructions. Such orderbook en- and the Baltimore & Ohio Company your vertry having been inadvertently overlooked, ap- dict should be for the plaintiff, and this will pellant is entitled to have such instructions be true without regard to the question as to considered. The statement in the original whether the Pennsylvania Company was opinion that the exception was taken in guilty of negligence or not. (g) The fact that the Pennsylvania train stopped between interurban street railroad, the jury, in estiIllinois avenue and Broadway, if such be the mating the damages, should not make deductions fact, did not justify the operatives of the

for benefits accruing to the landowner from the

construction and operation of the road. Baltimore & Ohio train in proceeding to back

[Ed. Note.For cases in point, see vol. 18, to the point of collision in violation of a red Cent. Dig. Eminent Domain, 88 378-393.] light signal displayed by the signal man, 2. SAME. if the same was so backed. The statute of In a proceeding under Burns' Ann. St. this state made it the duty of the operatives 1901, f. 5468a et seq., to condemn land for an of the Pennsylvania train to bring their

interurban street railroad, the damages to the

landowner should be assessed as in case of the train to a full stop before passing over the appropriation of land for the use of a commercial crossing, and the making of the statutory railroad. stop would not justify the operatives of the

Appeal from Circuit Court, Delaware Baltimore & Ohio train in concluding that County; Joseph G. Lefler, Judge. the Pennsylvania train would remain stand

Proceedings by the Muncie, Hartford & ing while they were making use of the cross

Ft. Wayne Railway Company against Saming with the Baltimore & Ohio train in vio

uel S. Carrell to condemn land for a street lation of a red-light signal forbidding them

railroad. From a judgment awarding damto do so.”

ages, defendant appeals. Reversed and re Those portions of the instruction designat

manded. ed "a" and "b" are objected to because they told the jury that the backing of appellant's

George H. Koons, for appellant. Cantwell train against the signal was, as a matter of

& Simmons, for appellee. law, negligence, and that this was an invasion of the province of the jury. The court simply

BLACK, J. The appellee instituted protold the jury that if certain designated facts

ceedings for the appropriation of a strip 40 existed, and established by the evidence, that

feet in width through agricultural lands of such facts would constitute negligence. Neg

the appellant, for the construction of the apligence is oftentimes a mixed question of law

pellee's "interurban street railroad," purand fact. It was the province of the jury

suant to the statute of March 11, 1901 to determine the facts, and the court left

(Burns' Ann. St. 1901, $ 5468a et seq.). that question to them, and simply said that

Among the instructions asked by the apif they found such facts to exist, they would

pellant which the court below refused to constitute negligence. We do not think this

give to the jury was the following: "(5) The was an invasion of the province of the jury,

court instructs the jury that, in estimating and taking the instruction as a whole, and

the damages, no deduction shall be made in connection with other instructions, it was for any benefits that may arise or accrue to a correct declaration of the law. That part

the landowner by the location, construction, of the instruction designated "d" is not dis

and operation of the road." Since the trial cussed, and is therefore waived. The objec- of this cause, the matter involved in this tion to that part designated "e" is that it

instruction has been examined by this court, selects an isolated fact, to wit, that of the

and has been decided contrary to the ruling signal being against appellant, and told the here questioned. See Indianapolis Northern jury that if they found such fact to exist,

Traction Co. v. Dunn (Ind. App.) 76 N. E. that their verdict should be for the appellee. 269; Indianapolis Northern Traction Co. v. Construing this part of the instruction in Ramer (Ind. App.) 76 N. E. 808. We do not connection with all of it, we do not think it find any reason for departing from the conerroneous.

clusion reached on this subject in those cases. Counsel say that the objections urged to The principles and rules for the assessthe other parts of the instruction are appli

ment of damages in such cases are well ascable to that part designated “g," and, further,

certained and explained in the decisions; that "because, in giving it, the court under- and other questions suggested by counsel took to charge, as a matter of law, the legal may, on another trial, present no difficulty, effect of certain acts which should have been being approached with the understanding left to the determination of the jury upon a

that it is the intention of the Legislature consideration of all the evidence and circum- that in such cases damages to the landowner stances in the case." We do not think the should be assessed as in case of the approinstruction is subject to the objections urged. priation of land for the use of a commercial The petition for a hearing is overruled. railroad company.

Judgment reversed. Cause remanded for (38 Ind. App. 700)

a new trial. CARRELL V. MUNCIE, H. & FT. W. RY. CO. (No. 5,544.)

(38 Ind. App. 342) (Appellate Court of Indiana, Division No. 1.

EVANSVILLE GAS & ELECTRIC LIGHT June 20, 1906.)

CO. v. RALEY. (No. 5,379.) ) 1. EMINENT DOMAIN - TAKING LAND FOB

STREET RAILROAD-DAMAGES–DEDUCTIONS (Appellate Court of Indiana. June 20, 1906.)
FOR BENEFITS.
In a proceeding under Burns' Ann. St.

On rehearing. Overruled.
1901, $ 5468a et seq., to condemn land for an For former opinion, see 76 N. E. 548.

imposes upon him." Benzing v. Steinway & the exercise of reasonable diligence, the em

PER CURIAM. Petition for rehearing court cannot say that the fixing of the spur overruled.

in the pole at that time gave or should have

given appellee notice of the rotten condition ROBY, J. (dissenting). The negligence thereof. The appellee was not in the best charged in the complaint must be taken as position to ascertain the condition of the established by the verdict, and the sufficiency pole and wires. The rules regulating the of the facts to support it in that behalf is not respective duties of employer and employé questioned. It appears from the opinion that have been so many times declared that it the defects complained of, both of which seems superfluous to repeat them. "The apcontributed to the injury and both of which pellee was not required to make a special were caused by the negligence of a single examination or careful investigation to asdefendant, were latent and concealed ones. certain whether the bent had been negligentIt is entirely well established that the em- ly or carelessly raised, or whether it was ployé is not required to search for latent and then in a dangerous and unsafe condition, beconcealed dangers of which he has neither fore obeying the command of the master. actual nor constructive notice. Salem Stone When directed to do the act in the perform& Lime Co. v. Tepps, 10 Ind. App. 516, 519, ance of which he was injured he had the 38 N. E. 229. It is also established that an right to assume that the street commissioner, employé assumes risks naturally and ordi. with his superior knowledge of the facts, narily incident to the service in which he would not expose him to unnecessary danengages. Wortman v. Minich et al., 28 Ind. ger.” City of Lebanon v. McCoy, 12 Ind. App. App. 31, 62 N. E. 85; Lake Shore, etc., Co. 500, 40 N. E. 700; O. & M. Ry. Co. v. Pearcy, V. McCormick, 74 Ind. 440, 445. Danger 123 Ind. 202, 27 N. E. 479. "If an employé, caused by the master's negligence is not a reposing confidence, as he has a right to, in necessary incident to the service, and the the prudence and caution of the employer, risk arising therefrom is not an assumed in- relies upon the adequacy of the implements cidental one. Barley V. Southern Ind. Ry. put into his hands to work with and upon Co., 30 Ind. App. 406, 412, 66 N. E. 72.

"The the safety of the place assigned him to work, risks a servant assumes on entering upon and sustains injury in consequence of the the employment of a master are those only failure and neglect of the employer to diswhich occur after the due performance by close latent defects or perils, which the latter the employer of those duties which the law knew, or which he should have known by

" Sons, 101 N. Y. 547, 5 N. E. 449; Stringham ployő is entitled to remuneration for his v. Stewart, 100 N. Y. 516, 3 N. E. 575; Pant- loss.” Bradbury V. Goodwin, 108 Ind. 286, zar v. Tillie Foster Imp. Co., 99 N. Y. 368, 2 9 N. E. 302; Krueger v. Louisville, etc., R. Co., N. E. 24. The employé also assumes risks 111 Ind. 51, 11 N. E. 957, and cases cited; arising from open and obvious defects. The Mitchell V. Robinson, 80 Ind. 281, 41 Am. danger arising therefrom must be either Rep. 812; Boyce V. Fitzpatrick, 80 Ind. actually or constructively known to him, and 526; Atlas Engine Works v. Randall, 100 he must also be charged with actual or con- Ind. 293, 50 Am. Rep. 798; Indiana Car Co. structive appreciation of the danger out of v. Parker, 100 Ind. 181; Louisville, etc., R. which the assumed risk arises. Avery v. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Nordyke & Marmon Co., 34 Ind. App. 552, 70 Pittsburg, etc., R. Co. v. Adams, 105 Ind. N. E. 888. Nothing short of this can form 151, 5 N. E. 187; Pennsylvania Co. v. Whitthe basis of an implied contract upon which comb, 111 Ind. 212, 12 N. E. 380; Stringham the doctrine of assumed risk depends in this v. Stewart, 100 N. Y. 516, 3 N. E. 575; Pantstate. Wortman v. Minich et al., supra. zar v. Tilly, etc., Co., 99 N. Y. 368, 2 N. E.

It is said in the opinion that "appellee was 24; Bean v. Oceanic Steam Nav. Co. (C. C.) in the best position to ascertain the condi- 24 Fed. 124. "It is true that the master is tion of the wires and the pole, but no super- bound to use ordinary care and diligence in ficial inspection would have disclosed the providing reasonably safe and suitable madefective condition of the pole.” This state- chinery and appliances for his servants, and ment is inaccurate as to facts. The appellee is liable for injuries resulting from his failhad never seen the pole until a moment be- ure to perform this duty. He is also chargefore he climbed it. He did not know how able with notice of the natural tendency long it had been in place, or how long the of machinery and implements to wear out insulation had been upon the wires. He and decay with use and age, and is therefore climbed the pole by means of a ladder. It required to exercise an active and continudoes not appear that he ever sank a spur in ing supervision and vigilance to maintain it until he did so to do the work in the per- them in a reasonably safe condition. A servformance of which he was injured. Neither ant may rightfully act upon the presumpdoes it appear that there was anything in tion that the master has performed his duty the resistance made by the pole to the set- in supplying proper machinery and appli. tling of the spur which attracted his atten- ances, unless he has notice otherwise, or tion to its condition. The general verdict facts are patent and come within the reasonoffers all inferences for appellee, and this able range of his observation which would excite the apprehension of a reasonably cau- tion: "Q. Now, what did he say to you, or tious person and put him upon inquiry. what was said to you there, if anything, * * * While a servant may have an equal about working

about working the wires ? A. Why, Mr. opportunity, he is not bound to make a crit- Fisher said to work those wires as if they ical examination of the condition of an im- were hot." It is not suggested by appellant plement or item of machinery before using that appellee did not comply with the order it, to ascertain if it contained any latent de- thus given. No detail of his procedure is fects, unless so required by the terms of his criticised. He unfastened the outside wire employment.” Louisville, etc., Co. v. Berry, and took hold of it with his right hand to 2 Ind. App. 430, 28 N. E. 714; Indiana Car push it off of the cross-arm. The wires Co. v. Parker, supra; Bradbury v. Goodwin, made an angle at this pole, and considerable supra.

force was required to remove it. While exIn the statement of the opinion that "the erting such force, the spur on his left foot exercise of ordinary care upon the part of tore out of the pole, causing him to lose his appellant would have disclosed no more than balance and bringing his left hand in conthe exercise of the same degree of care by tact with a second wire, thereby forming a the appellee,” the court usurps the functions short circuit and instantly depriving him of of the jury, forgetting that an appellate tri- consciousness. Three fingers were burned bunal is not at liberty to weigh evidence off of one hand and two off of the other, and and does not approach the issue as the trial he was otherwise injured. court does, but is bound to take the facts as Appellant's negligence formed an element they have been determined. The opinion in the injury complained of, and takes the also ignores the superior knowledge of ap- occurrence out of the category of mere accipellant and appellee's actual ignorance of the dents. An accident, in the sense in which conditions by reason of which he was in- the term is used, is an occurrence to which jured. The character of the defects com- human effort does not contribute. “A pure plained of furnishes the foundation for the accident, where there is an absence of negliconclusion reached by the jury and prevents gence, will not supply a cause of action; but, this court from justly saying, as a matter of where the accident is attributable to the law, that it was his duty to have known of negligence of the defendant, it is otherwise." the danger to which he was subjected. The Nave v. Flack, 90 Ind. 205, 210, 46 Am. Rep. master's duty is to furnishi a safe place and 205. I am convinced that a decision which safe appliances. It requires appellant to relieves owners of electric light and other take notice of the tendency of wood to decay, poles of a similar nature from all responsiand of the effect of exposure upon the per

bility in cases of this sort ought not to be ishable material with which it chose to in- made, and that the petition for a rehearing sulate the wires in question. It knew the herein sliould be sustained. time during which such process had been going on, and was bound to take notice of

(38 Ind. A. 339) them and duly and reasonably guard against

RICHARDSON V. STEPHENSON et al. them. Appellee was under no duty, as be

(No. 5,908.) fore stated, to search for latent and conceal

(Appellate Court of Indiana, Division No. 2. ed defects, and had no information tending

June 20, 1906.) to put him upon inquiry. He protected him

1. NEW TRIAL-STATUTORY NEW TRIAL self by means of a safety belt from falling JUDGMENT-VACATION. to the ground. A slip, caused by the de

Where, in a suit to quiet title, plaintiff was fective pole, was productive of a painful in

granted a statutory new trial, it was the duty

of the court to vacate the original judgment of jury; he thereby being brought in contact record. with a wire negligently allowed to remain [Ed. Note.—For cases in point, see vol. 37, without sufficient insulation. Both causes

Cent. Dig. New Trial, § 364.] which contributed to his injury were created 2. APPEAL -- PLEADINGS - DEFECTS-AMENDby the negligence of a single defendant, and

MENT ON APPEAL.

Where a defect in a complaint sought to the finding of the fact against such defend

be taken advantage of by demurrer was one ant by the jury ought, so far as the question which might have been cured by amendment in of proximate cause is concerned, to be reason- the trial court, it would be deemed to have been

so cured by amendment on appeal, as provided ably safe from the logic of this court. Ap

by Burns Ann. St. 1901, § 670. pellee did not inspect or examine either the

[Ed. Note.For cases in point, see vol. 3, pole or insulation upon the wires. He did Cent. Dig. Appeal and Error, $$ 3621, 3622.] not known that there was any defect in

3. SAME-ASSIGNMENTS OF ERROR. either, nor how long the pole had been in Where a demurrer was directed to plainuse, nor how long the insulating material tiff's complaint, and was overruled, an assignhad been upon the wires. The statement in

ment of error challenging the action of the

court in overruling the demurrer to the rst the opinion “that appellee admits that the

paragraph of the "amended complaint” was un. foreman told him, before he began the work, available. that he should work the wires as if they 4. PLEADING-ANSWER-DEMURRER. were hot," is not an ingenuous way of stat

Where all the facts averred in a special

paragraph of the answer were admissible under ing that appellee's attorney asked him upon

the general denial pleaded, the sustaining of his original examination the following ques- the demurrer to such paragraph was not error.

others against Irene Richardson and others, il