member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed, in law, a party to every act which had before been done by others, and a party to every act which may afterwards be done by any of the others in furtherance of such common design." 1 Greenl. Ev. § 111. The doctrine here declared has been approved and acted upon in many of our decided cases. Williams v. State, 47 Ind.. 568; Jones v. State, 64 Ind. 473; Walton v. State, 88 Ind. 9; Archer v. State, 106 Ind. 426; S. C. 7 N. E. Rep. 225.

But appellant's counsel say: "Admitting, for the sake of the argument, that the conspiracy was established, still the court erred in admitting the declarations and letter. We understand the rule to be, as laid down in 1 Greenl. Ev. § 111: The acts and declarations thus admitted are those only which were made and done during the pendency of the criminal enterprise, and in furtherance of its objects.'" Doubtless, counsel state the rule correctly; but they err, we think, in claiming that the criminal enterprise was not pending when the letter above quoted was written, or that it was not written in furtherance of the objects of the conspiracy. True, the evidence shows that the counterfeit note upon which the indictment herein was predicated had been forged, sold, and uttered by the conspirators some time prior to the date of the letter heretofore quoted; but it does not show that the conspiracy, which, as is apparent from the record of this cause, covered the forgery and utterance of many other counterfeit notes, had then come to an end. Indeed, it may be fairly inferred from all the evidence, we think, that the criminal enterprise in which the conspirators were engaged was at the flood-tide of apparent success when the letter to Mikels was written. We conclude, therefore, that the fifth cause for a new trial was not well assigned, as the Marshall letter referred to therein was competent evidence.

What we have said in considering the fifth cause for a new trial applies with equal force to the fourth, sixth, seventh, ninth, tenth, and eleventh reasons assigned for such new trial. Each of such reasons was based upon a different ruling of the court below, admitting in evidence, over appellant's objections and exceptions, certain declarations, verbal or written, of Marshall, of and concerning other notes which were shown to have been forged by such conspirators, and his efforts to sell and utter the same, and about John Hall, the payee named therein. The same objections were urged below, and are urged here, to the competency of these declarations, verbal or written, as evidence against appellant herein, as were urged to the admissibility of the letter heretofore quoted, addressed to Mr. Mikels, as evidence against appellant. The formation and existence of the conspiracy, for the unlawful purposes mentioned, having been established by sufficient proof, every act or declaration of any one of the conspirators, in pursuance of the original plan, and with reference to the common object, became and was original and competent evidence against each and all of them. Of course, it is true, as appellant's counsel claim, that nothing said or done by one of the conspirators in the absence of the others, after the common design has been fully consummated, can be used as evidence against the others, or affect them in any way. But this is of no avail to appellant in this case, for here the existence of the conspiracy for an unlawful purpose has been established by sufficient proof, and it was not shown, and does not appear, that the common design had been fully consummated at the time the verbal and written declarations, which the state put in evidence, were made by one of the conspirators. On the contrary, we think it fairly appears from the evidence in the record that the common design had not been consummated when such declarations were made. In rev.9N.E.no.7-38

gard to the admission of the acts or declarations of one conspirator as original evidence against each member of the conspiracy, substantially the same rule applies in criminal as in civil causes. Smith v. Freeman, 71 Ind. 85; Hogue v. McClintock, 76 Ind. 205; Wolfe v. Pugh, 101 Ind. 293; Daniels v. McGinnis, 97 Ind. 549.

Appellant's counsel next complain of the admission in evidence of 13 promissory notes, other than the one set out in the indictment, purporting to have been executed by different persons, but all payable apparently to the same John Hall. Counsel say: "The only object that could be accomplished by this evidence was to prove that the defendant had been guilty of numerous other forgeries. Coupled with this evidence is the testimony of several witnesses that the notes were in the handwriting of appellant, and it was also in testimony that they were forgeries. The admission of these notes in evidence was clearly erroneous." In support of their position, counsel cite and rely upon Barton v. State, 18 Ohio, 221, and Bonsall v. State, 35 Ind. 460. An examination of these cases shows very clearly, we think, that, while each of them was correctly decided, neither of them has any application to such a case as the one under consideration. We are of opinion that the court did not err in the admission of such other notes in evidence, although they were shown to have been forged by appellant. Upon this subject, in his Criminal Evidence, § 32, Mr. Wharton says: "Suppose that it is alleged that the crime in question was one of a system of mutually dependent crimes, is it admissible, on a trial for one of these crimes, to put in evidence such other crimes, for the purpose of showing this system? In several lines of civil cases, such evidence has been held admissible, nor is there any reason why such evidence should not be received in criminal cases. In order to prove purpose on the defendant's part, system is relevant; and, in order to prove system, isolated crimes are admissible, from which system may be inferred. ** * Conspiracy cases give signal illustration of the rule here stated. The acts of each conspirator emanate from him individually, yet, when they are part of a system of conspiracy, they are admissible in evidence against his co-conspirators, although each component act may constitute an independent offense. The reason for the rule, in this and similar cases, is that, when once system is proved, each particular part of the system may be explained by other parts which go to make up the whole." Upon the same subject, see, also, Harding v. State, 54 Ind. 359; Robinson v. State, 66 Ind. 331; Thomas v. State, 103 Ind. 419, and authorities cited on pages 432, 433; S. C. 2 N. E. Rep. 808.

Appellant's counsel mildly complain, in argument, of two of the court's instructions to the jury trying the cause. No good purpose would be subserved, we think, by our setting out and commenting on either of these instructions. It will suffice for us to say that we have carefully considered all the court's instructions to the jury, and that, taken as a whole, they presented to the jury the law of this case fully and fairly for the appellant. We have found no error which would authorize a reversal of the judgment. The judgment is affirmed, with costs.

(110 Ind. 18)

LOUISVILLE, N. A. & C. RY. Co. v. FRAWLEY. 1

(Supreme Court of Indiana. December 22, 1886.),

1. MASTER AND SERVANT-RISKS OF EMPLOYMENT-RAILROADS-MINOR EMPLOYE. As a general rule, a servant who enters upon an employment necessarily haz ardous assumes all the risks and perils ordinarily incident to such employment; and, where they are equally known and open to observation and inspection by master and servant, the former is not liable for a resulting injury; but where a servant, known to be inexperienced, is set to work by the master, without being cautioned, with niachinery known by the master to be unusually dangerous, the rule is otherwise, and a railroad company may be liable to a minor servant em1 Rehearing denied.

ployed to couple cars with single dead-woods, where, knowing his inexperience, it puts him to the more dangerous work, without warning, of coupling cars with double dead-woods, by which he is injured, notwithstanding the fact that the cars contain double instead of single dead-woods is open to the observation of the servant.1

2. SAME-EVIDENCE-PRINTED RULES.

A printed rule of a railroad company is admissible in evidence, in an action by a servant against the company for negligence, to show that the servant was properly attempting to carry out the orders of the conductor at the time of the injury. 3. SAME-APPArent Age of MINOR SERVANT.

In an action by a minor against a railroad company for an injury received through the alleged negligence of the company while in its employ, the plaintiff himself having testified before the jury, it is not error to permit the boy's father to testify as to his relative appearance as to age at the time of the injury and at the time of the trial, and that he did not appear older at the time he entered the company's employment than he really was.

4. SAME-WANT OF KNOWLEDGE ON PART OF SERVANT.

Evidence of the plaintiff, who was injured while attempting to couple cars of the defendant with double dead-woods, that, up to the time he was injured, he had never observed that cars were constructed with double dead-woods, is admissible in such case.

5. DAMAGES-PERSONAL INJURIES-CAPACITY TO EARN WAGES.

In an action for personal injuries, evidence of plaintiff's capacity to earn wages before and at the time he was injured is admissible.

6. WITNESS-IMPEACHMENT-GOOD CHARACTER.

Where a witness has been impeached by showing that he made contradictory statements out of court, evidence of his general good character and reputation for truth and veracity is admissible.

7. EVIDENCE-OPINION, WHEN ADMISSIBLE.

Where the question under investigation so far partakes of the nature of a science as to require a course of study, or a previous habit of special practice, in order to understand it, the opinions of witnesses competent to speak are admissible in evidence.

8. TRIAL SPECIAL VERDICT-CONCLUSIONS OF LAW-MOTION TO STRIKE OUT.

While conclusions of law should not be stated in a special verdict, if they are so stated, they will be disregarded by the court, and it is not error to overrule a motion to strike out such statements.

9. SUNDAY-VIOLATION OF, DOES NOT PREVENT RECOVERY FOR NEGLIGENCE.

The mere fact that one who sustains an injury by the negligent act of another

may have been, at the time of such injury, acting in disobedience of the Sunday

laws of the state, will not prevent a recovery from the party whose wrongful or negligent act was the proximate cause of such injury.

Appeal from circuit court, Tippecanoe county.

Geo. W. Easley, G. W. Friedley, and W. H. Russell, for appellant. Langdon & Gaylord and Coffroth & Stuart, for appellee.

MITCHELL, J. Frawley brought this suit against the railway company to recover damages for an injury alleged to have been sustained by him, while in the company's service, through its negligent omission of duty. The complaint was in three paragraphs, but the state of the record is such that we are required to consider only the third paragraph, and determine whether or not it states facts sufficient to constitute a cause of action. The averments of this paragraph, so far as they are material to be stated here, are that prior to the eighth day of December, 1883, Frawley had been in the company's service for a period of two or three days, and had been engaged in throwing switches, coupling freight cars, and giving signals in the defendant's yards in the city of La Fayette. It is averred that coupling cars which are equipped with what are commonly called "double dead-woods" is attended with more hazard to the person making such coupling than is the coupling of those supplied with single dead-woods, the latter being the kind ordinarily used by the defendant on its road. On the eighth day of December, 1883, the plaintiff en

1 See note at end of case.

tered the company's service in the capacity of brakeman on one of its freight trains. At the time of his employment, he was a minor, of immature judgment and experience, and was ignorant of, and uninstructed in respect to, the difference between double and single dead-woods, or the hazard attending the act of coupling cars constructed with double dead-woods. It is averred that the defendant knew, or by the exercise of proper care might have known, that the plaintiff was of immature judgment, and without experience, and ignorant in the respect above mentioned. While thus in the company's service, to-wit, on Sunday, the ninth day of December, 1883, in attempting, in obedience to the order of the conductor in charge of the train upon which the plaintiff was a brakeman, to couple an engine and freight car, both of which were furnished with double dead-woods, the plaintiff's hands were, without any fault on his part, caught and crushed between the dead-woods of the engine and car as they were brought together to be coupled. The injury is described as being of great severity, rendering necessary the amputation of some of the fingers on each hand, thus producing a permanent disability. The plaintiff lacked about two months of being 19 years old at the time of the injury.

The ruling of the court below in overruling the demurrer to this complaint is assailed upon the ground that the facts therein alleged do not take the case out of the rule that an employe assumes the risks of the service in which he engages, and also those risks which are apparent to ordinary observation. The argument is that notwithstanding the averment that the plaintiff was ignorant of, and had never been instructed in respect to, the difference of construction of cars and engines with double dead-woods, or the hazard of coupling them, since such difference was obvious to the senses of any person of ordinary intelligence, it was essential, in order to make the complaint sufficient, that the plaintiff should have stated some reason why he did not know or appreciate the danger of putting his hands between the dead-woods on the engine, and those on the car, against which the engine was propelled. The rule is too well settled to be longer open to discussion that when a servant enters upon employment which is, from its nature, necessarily hazardous, he assumes the usual risks and perils of the service, and this is especially so as to all those risks which require only the exercise of ordinary observation to make them apparent. Atlas Engine-works v. Randall, 100 Ind. 293; Pittsburgh, etc., Co. v. Adams, 105 Ind. 151; S. C. 5 N. E. Rep. 187. In such a case there is held to be an implied contract on the part of the employe to take all the risks fairly incident to the service, and to waive any right of action against the employer for injuries resulting from such risks. Beach, Cont. Neg. par. 8. This implied contract and waiver includes, on the one hand, all such risks and injuries as the employer, by the exercise of reasonable care and diligence in the performance of those duties which pertain to his position, could not reasonably have become aware of and provided against, and, on the other, such as the employe, from the nature of the business as usually and ordinarily conducted, must have known, when he embarked in the service, were incident thereto, as also those which the exercise of his opportunities for inspection, while giving diligent attention to such service, would have disclosed to him. Where the defect or injurious contrivance is equally known to, or alike open to the observation of, both employer and employe, both are upon common ground, and the employer is not liable for a resulting injury. Porter v. Hannibal, etc., Co., 71 Mo. 66; Beach, Cont. Neg. par. 140.

The severity of the principles above stated are relaxed measurably in favor of the employe in case the defect or danger is such as is not open to observation or ordinary inspection, or in case the employe, on account of immaturity, or for any other reason, is known to be not of sufficient capacity or experience to appreciate the danger, or to know how to perform the required service and

yet avoid the obvious hazard. Pittsburgh, etc., Co. v. Adams, supra. In Atlas Engine-works v. Randall, supra, speaking on this subject, the court says: "Where an inexperienced servant is required to perform a hazardous service, in the performance of which extraordinary caution or peculiar skill is required in order to enable him to avoid danger which may be apparent, it may be a question for a jury to determine whether, under all the circumstances, the master gave sufficient caution of the danger, or adequate information of the means necessary to avoid it."

So, in Sullivan v. India Manuf'g Co., 113 Mass. 396, the court employs this pertinent language: "It may frequently happen that the dangers of a particular position or mode of doing work are great, and apparent to persons of capacity and knowledge of the subject, and yet a party, from youth, inexperience, ignorance, or general want of capacity, may fail to appreciate them. It would be a breach of duty on the part of a master to expose a servant of this character, even with his own consent, to such dangers, unless with instructions or cautions sufficient to enable him to comprehend them, and to do his work safely, with proper care on his own part. It was therefore competent for the plaintiff to show that there had been such a breach of duty on the part of the defendant, and although he had in fact gone to work in the place pointed out, assenting so to do, yet that he was incapable of appreciating the dangers to which he exposed himself, or of doing the work safely without instructions or cautions which he did not receive.

It cannot be doubted that a service which involves obvious danger may be performed in comparative safety by one who has had adequate experience or sufficient instruction, while the same service would be attended with almost certain injury if attempted by one who had neither experience nor instruction. In such a case, the employer who, with knowledge of the want of experience of an employe, nevertheless, without instruction or warning, exacts from him a service which requires the observance of extraordinary caution, or the exercise of peculiar skill, in order that an apparent danger may be avoided, may, depending on the extent of the incapacity of the employe, the nature of the service required, and all the other circumstances of the case, be liable for an injury sustained. Parkhurst v. Johnson, 50 Mich. 70; S. C. 15 N. W. Rep. 107; O'Connor v. Adams, 120 Mass. 427; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Ryan v. Tarbox, 135 Mass. 207; Wheeler v. Wason Manufg Co., 135 Mass. 294; Dowling v. Allen, 74 Mo. 13.

The complaint before us makes a case in which it appears that the ordinary hazard of coupling cars on the appellant's railroad was such as was incident to coupling those supplied with single dead-woods. Coupling cars furnished with double dead-woods was extraordinarily hazardous, especially to a person unacquainted with the difference between such contrivances. To this service the plaintiff, of known inexperience, was set, without instruction or warning. The result was the injury complained of.

In Grizzle v. Frost, 3 Fost. & F. 622, COCKBURN, C. J., says: "If the owners of dangerous machinery, by their foreman, employ a young person about it, quite inexperienced in its use, either without proper directions as to its use, or with directions which are improper, and which are likely to lead to danger, of which the young person is not aware, as it is their duty to take unusual care to avert such danger, they are responsible for any injuries which may ensue from the use of such machinery.

99

The rule contended for by the appellant, that the employe impliedly assumes the risks of the service, and of such dangers as are obvious and open to ordinary observation, does not embrace such risks as the employer knows, or which by the exercise of reasonable care he might have known, beforehand that the employe, by reason of his immaturity and inexperience, is ignorant of, or such as the employer knows the employe, without experience, cannot appreciate or avoid, without instruction or warning. The employer may as