sume, unless he has knowledge to the contrary, without a critical examination, as was in effect said in Pittsburgh, etc., Co. v. Adams, supra, that a person who seeks employment in a particular capacity is possessed of sufficient ability and experience, and is of such an age as qualifies him, to discharge the duties incident to the service applied for, and that he is competent to apprehend and avoid all the apparent and obvious hazards of the service as they may appear during its progress. Where, however, as in the case before us, it is alleged on the one hand, and admitted on the other, that the employe was inexperienced and ignorant in respect to the difference in the construction of dead-woods, and of the hazard of coupling cars equipped with double dead-woods, that the fact of his want of knowledge and inexperience was, or by the exercise of care might have been, known by the railway company, and that the defendant, nevertheless, without instructing or warning him of the hazard, required him to make such coupling, and while so engaged the plaintiff was, as is alleged, injured without fault on his part, the facts present a case upon which an issue may be made for trial. The gravamen of such a case is the omission of duty on the part of the employer in failing to instruct an inexperienced servant, who, although he may see the danger, may nevertheless be utterly ignorant of the risk, or of the manner of performing the service so as to avoid injury therefrom.

Whatever application the case of Atlas Engine-works v. Randall, supra, may have to the evidence in this case, it is not controlling as to the facts stated in the complaint under consideration.

The case was tried to a jury, who returned a special verdict, in which the plaintiff's damages were assessed at $7,700. Motions to strike out parts of the special verdict of the jury, for a venire de novo, and for a new trial, were severally filed and overruled.

Numerous grounds were assigned in the written motion as causes for a new trial; the eighth being that the court erred in admitting in evidence rule No. 156, from a printed book containing the appellant's rules and instructions to its employes. This rule prescribed the duties and authority of conductors in respect to the management of trains in their charge. Among other things, the rule provided that "all train employes while on duty are under the charge of the conductors of their respective trains." We think this rule was relevant for the purpose of showing that the plaintiff was in the proper discharge of his duty, and acting under the lawful authority of the defendant while attempting to make the coupling when he was injured.

The plaintiff's father was permitted to testify as to his appearance, as to age, at the time of the trial, as compared with his appearance in that respect immediately before he was hurt. The plaintiff having himself testified before the jury, we cannot perceive that the evidence was improper; nor do we see any impropriety in the next cause assigned for a new trial, which is predicated on the fact that the plaintiff's father was permitted to testify that in appearance the plaintiff was not older than he really was at the time he entered the appellant's service.

The plaintiff was also permitted to testify that, up to the time he received the injury complained of, he had never observed that cars or engines were constructed with double dead-woods. There was no error in this.

It was also competent to show what the plaintiff's capacity to earn wages was at and before the time he suffered the injury.

Prior to the trial the defendant had examined the plaintiff under oath. During his cross-examination as a witness, he was asked whether or not he had not, at the prior examination, made certain statements, in which he had given an account of matters materially different from that stated at the trial. Part of the prior examination was then introduced in evidence by the defendant, with a view to contradict testimony given by the plaintiff at the trial. Subsequently the plaintiff was permitted to introduce testimony to the effect that

his general reputation for truth and veracity in the neighborhood in which he lived was good. This was in accordance with the rule that, where a witness has been impeached by showing that he has made statements out of court contradictory of those made at the trial, evidence of his general good character, and of his good repute for truth and veracity, may be introduced. Clem v. State, 33 Ind. 418; Clark v. Bond, 29 Ind. 555. Where a witness is contradicted by proving the fact to be different from what it was testified to by him, evidence of his general good character will not be received. The cases relied on by the appellant sustain this rule, but that is not the principle here involved. Pruitt v. Cox, 21 Ind. 15; Brann v. Campbell, 86 Ind. 516; Presser v. State, 77 Ind. 274; Hodges v. Bales, 102 Ind. 494; S. C. 1 N. E. Rep. 692. The plaintiff was permitted to prove by witnesses, who were admitted to testify as experts, the relative manner of coupling cars equipped with single and double dead-woods, and also that the coupling of cars equipped with the latter is attended with more danger than is the coupling of those supplied with single dead-woods. This, it is contended, was not a subject requiring special skill or study, and hence not one upon which it was proper to take the opinion of witnesses. In each instance the witnesses were first asked to describe with some minuteness the difference in the construction and the process of coupling of cars equipped with double or single dead-woods. With this description and preliminary explanation we have no doubt of the propriety of the evidence. Even non-expert witnesses may give their opinions, in a proper case, where such opinions are based upon facts and observations detailed to the jury. Carthage, etc., Co. v. Andrews, 102 Ind. 138, S. C. 1 N. E. Rep. 364, and cases cited.

Speaking upon this subject, the supreme court of Iowa said, in a case closely analogous to this: "The construction of cars, the mode of operating them, and the effect of a particular thing on their safety and usefulness, is a habit, study, or science. * ** The ordinary jury would not know the effect of these

double dead-woods."

The testimony received was within the rule that 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 the attainment of a correct knowledge of the subject, the opinion of witnesses competent to speak should be received.

A suggestion is made that the court erred in admitting in evidence parts of a certain book containing tables of expectancy or life-tables. No sufficient reasons against the ruling are developed in the briefs to enable us to say that any error was committed. The point is not discussed by counsel. We will not examine it further.

Some other criticisms upon rulings of the court in relation to the admission or exclusion of evidence are made, but they are not so presented as to require an examination. We perceive no error in respect to those rulings.

Considerable space is devoted to a discussion relating to the propriety of certain instructions asked on appellant's behalf, and refused by the court, as also to certain of the instructions given by the court of its own motion. It will be remembered that the jury, upon request of the parties, as appears by the record, returned a special verdict. Where such a request is made, it becomes the duty of the jury to return the material facts which they find to have been proven to the court, without any regard to the legal value or ultimate consequences of such facts. It then becomes the duty of the court to declare the law upon the facts returned. There is therefore neither propriety nor fitness that the court should, either upon its own motion, or at the request of either party, give any general instructions as to the law of the case. The jury should be left entirely free to find the facts material to the several issues, without instruction as to whether the law will declare one way or the other upon any fact or state of facts which may be found. A statement by

the court of the matters put in issue by the pleadings, and of the rules for weighing or reconciling conflicting testimony, with whatever else may be necessary to enable the jury clearly to comprehend the subjects which are to be covered by their special verdict, is all that is proper when a special verdict is to be returned. Indianapolis, etc., Co. v. Bush, 101 Ind. 582. Obviously, therefore, there was no error in refusing the instructions asked; and if any were given which were inaccurate, since the error, if any was committed, must have been in any event harmless, we do not examine them.

The motion to strike out parts of the special verdict, on the ground that such parts as the motion applied to were statements by the jury of legal conclusions, was also properly overruled. While it is not proper for the jury to state conclusions of law in a special verdict, such statements will be disregarded by the court in passing upon the facts properly found. Indianapolis, etc., Co. v. Bush, supra; Pittsburgh, etc., Co. v. Adams, 105 Ind. 151; S. C. 5 N. E. Rep. 187; Louisville, etc., Co. v. Balch, 105 Ind. 93; S. C. 4 N. E. Rep. 288.

There was no error in overruling the motion for a venire de novo. There are no such inconsistencies or ambiguities in the special verdict as renders it uncertain or doubtful which way the jury intended to find in respect to any question in issue.

There is some evidence tending to support the verdict upon every point material to a recovery by the plaintiff, upon the principles already announced in this opinion. We cannot disturb the finding for want of evidence.

Lastly, it is contended that the recovery was not justified, because it appears from the complaint, was proven at the trial, and found by the jury, that the plaintiff was injured while engaged at common labor on the first day of the week, commonly called Sunday. It is said the appellee was engaged at such labor in pursuance of a contract with the railway company, and that, because it was not shown that the labor in which he was engaged was a work of necessity, the law will refuse its intervention to secure compensation for the injury. It is undoubtedly true that where the right to recover depends upon the legality of a contract, either in respect to its execution or the consideration which supports it, if it appears that the contract was executed in violation of law, or that its performance necessarily involved the doing of that which was unlawful, a recovery on or for a breach of such contract will be denied. The contract in pursuance of which the plaintiff engaged in the appellant's service was not made on Sunday, nor was it to be performed on that day. It was therefore neither illegal in its inception, nor was it an engagement to do an unlawful act. Besides, there was no relation, near or remote, between the violation of the Sunday law and the injury complained of. That the plaintiff may have been violating his obligation as a citizen to the state cannot be set off against the appellant's failure of duty in requiring an extraordinary hazardous service from an inexperienced employe, without giving him warning of the peril attending the service required. The fact that one who sustains an injury by the negligent or wrongful act of another, may have been, at the time of such injury, acting in disobedience of his collateral obligation to the state, which required of him the observance of the Sunday laws, will not prevent a recovery from one whose wrongful or negligent act or omission was the proximate cause of such injury. Patt. Ry. Acc. Law, 64, 65, and note; Beach, Cont. Neg. 186, 187, 270, 278; Cooley, Torts, 155; 21 Cent. Law J. 525; Mohney v. Cook, 26 Pa. St. 342; Philadelphia, W., etc., Co. v. Philadelphia & H., etc., Co., 23 How. 209; Schmid v. Humphrey, 48 Iowa, 652; Knowlton v. Milwaukee, etc., Co., 59 Wis. 278; S. C. 18 N. W. Rep. 17; Wood, Ry. Law, & 318; Wentworth v. Jefferson, 60 N. H. 158; Opsahl v. Judd, 30 Minn. 126; S. C. 14 N. W. Rep. 575; Carroll v. Staten Island R. Co., 58 N. Y. 126; Platz v. City of Cohoes, 89 N. Y. 219; Stewart v. Davis, 31 Ark. 518, Tucker v. West, 29 Ark. 386; Baldwin v. Barney, 12 R. I. 392.

We have examined all the questions in the record which we find discussed in the able and laborious brief furnished us by the appellant's counsel. Although the damages assessed seem to us in a measure excessive, since we find no error of law, the judgment is affirmed. with costs.

NOTE.

A servant assumes the risk of all dangers incidental to his employment with which he is or may be presumed to be acquainted, Brossman v. Lehigh Val. R. Co., (Pa.) 6 Atl. Rep. 226; Drew v. Gaylord Coal Co., (Pa.) 4 Atl. Rep. 214; Wanamaker v. Burke, (Pa.) 2 Atl. Rep. 500; Rummell v. Dillworth, Id. 355; Shaffer v. Haish, (Pa.) 1 Atl. Rep. 575; Shaw v. Sheldon, (N. Y.) 9 N. E. Rep. 183; Coal Run Coal Co. v. Jones, (Ill.) 8 Ñ. E. Rep. 865; Lake Shore & M. S. Ry. Co. v. Stupak, (Ind.) 8 N. E. Rep. 630; Rock v. Indian Orchard Mills, (Mass.) 8 N. E. Rep. 401; Chicago, R. I. & P. Ry. Co. v. Londergan, (Ill.) 7 N. E. Rep. 55; Sweeney v. Berlin & Jones Envelope Co., (N. Y.) 5 N. E. Rep. 358; Russell v. Tillotson, (Mass.) 4 N. E. Rep. 231; Stafford v. Chicago, B. & Q. R. Co., (Ill.) 2 N. E. Rep. 185; Leary v. Boston & A. R. Co., (Mass.) 2 N. E. Rep. 115; Bunt v. Sierra Buttes Gold Min. Co., 24 Fed. Rep. 847; Hall v. Union Pac. Ry. Co., 16 Fed. Rep. 744; Lane v. Central Iowa R. Co., (Iowa,) 29 N. W. Rep. 419; Barbo v. Bassett, (Minn.) 29 N. W. Rep. 198; Kelley v. Chicago, St. P., M. & O. R. Co., Id. 173, and note; Brown v. Chicago, R. I. & P. R. Co., (Iowa,) 28 N. W. Rep. 487; Olson v. McMullen, (Minn.) 24 N. W. Rep. 318; Heath v. Whitebreast C. & M. Co., (Iowa,) 23 N. W. Rep. 148; Hobbs v. Stauer, (Wis.) 22 N. W. Rep. 153; Russell v. Minneapolis & St. L. Ry. Co., (Minn.) 20 N. W. Rep. 147; Fraker v. St. Paul, M. & M. R. Co., (Minn.) 19 N. W. Rep. 349; Mays v. Chicago, R. I. & P. R. Co., (Iowa,) 19 N. W. Rep. 680; S. C. 14 N. W. Rep. 340; Richards v. Rough, (Mich.) 18 N. W. Rep. 785; Behm v. Armour, 15 N. W. Rep. 806; McGinnis v. Canada S. B. Co., (Mich.) 13 N. W. Rep. 819; Clark v. St. Paul & S. C. R. Co., (Minn.) 9 N. W. Rep. 581; Gates v. Southern Minn. R. Co., Id. 579; Wells v. Burlington, C. R. & N. R. Co., (Iowa,) 9 N. W. Rep. 364; Mooney v. Lower Vein Coal: Co., (Iowa,) 8 N. W. Rep. 652; Perigo v. Chicago, R. I. & P. R. Co., (Iowa,) 7 N. W. Rep. 627; Sanborn v. Madera Flume & Trading Co., (Cal.) 11 Pac. Rep. 710; Wells v. Coe, (Or.) 11 Pac. Rep. 50; Sanborn v. Atchison, T. & S. F. Ry. Co., (Kan.) 10 Pac. Rep. 860; Kansas Pac. Ry. Co. v. Peavey, (Kan.) 8 Pac. Rep. 780; Lopez v. Central Arizona Min. Co., (Ariz.) 2 Pac. Rep. 748; Bogenschutz v. Smith, (Ky.) 1S. W. Rep. 578; but he does not assume the risk of any dangers arising from unsafe or defective methods, surroundings, machinery, or other instrumentalities, unless he has, or may be presumed to have, knowledge or notice thereof, Northern Pac. Ry. Co. v. Herbert, 6 Sup. Ct. Rep. 590; Bean v. Oceanic Steam Nav. Co., 24. Fed. Rep. 124; Cole v. Chicago & N. W. Ry. Co., (Wis.) 30 N. W. Rep. 600; Clapp v. Minneapolis & St. L. Ry. Co., (Minn.) 29 N. W. Rep. 340; Smith v. Peninsular Car-works, (Mich.) 27 N. W. Rep. 662; Cook v. St. Paul, M. & M. Ry. Co., (Minn.) 24 N. W. Rep. 311; Hobbs v. Stauer, (Wis.) 22 N. W. Rep. 153; Behm v. Armour, (Wis.) 15 N. W. Rep. 806; Rummell v. Dillworth, (Pa.) 2 Ati. Rep.

355.

It is the duty of a master who sets a servant to work in a place of danger to give him such notice and instruction as is reasonably required by the youth, inexperience, or want of capacity of the servant. Rock v. Indian Orchard Milis, (Mass.) 8 N. E. Rep. 401; Atkins v. Merrick Thread Co., Id. 241; McGowan v. La Plata M. & S. Co., 9 Fed. Rep. 861; Jones v. Florence Min. Co., (Wis.) 28 N. W. Rep. 207; Parkhurst v. Johnson, (Mich.) 15 N. W. Rep. 107; Missouri Pac. R. Co. v. Callbreath, (Tex.) 1 S. W. Rep. 622; Whitelaw v. Memphis & C. R. Co., (Tenn.) 1 S. W. Rep. 37.

(108 Ind. 585)

WELLS v. BENTON.

(Supreme Court of Indiana. December 23, 1886.)

1. JUDGMENTS-LIENS-AGREEMENT TO Extend.

Judgment liens cannot be enlarged and extended by agreement. Original opinion in Wells v. Benton, 8 N. E. Rep. 444, adhered to.

2. ESTOPPEL-DEED-GRANTEE NOT ESTOPPED BY AGREEMENT WITHOUT CONSIDERATION. As against one not an innocent purchaser for value, the grantee of a deed is not estopped by an agreement therein, without consideration, to pay a judgment which is not a lien on the land.

Appeal from circuit court Jackson county.

On petition for rehearing. See 8 N. E. Rep. 444.

W. K. Marshall and Frank Brannaman, for appellant. B. H. Burrell and Applewhite & Applewhite, for appellee.

MITCHELL, J. On petition for rehearing. Counsel for appellee insist that a rehearing of this cause ought to be granted because the court erred in holding, at the former hearing, that the stipulation in the conveyance from Conner to Mrs. Thompson, by which she covenanted to pay certain judgments which had been taken against Conner, and through which judgments the appellee claims title, did not have the effect to create or extend the liens of such judgments. It is said, in effect, that, because Conner held the legal title to the land in controversy at the time the judgments were taken against him, such judgments became liens on the title so held; and because Mrs. Thompson afterwards accepted a deed from him, which contained a stipulation therein written that she should pay these judgments, it therefore follows that the judgment liens, which prior to that time affected only the naked legal title which Conner conveyed to her, were thenceforth effectual to bind her whole estate, both legal and equitable. This conclusion is said to follow from the fact that Alexander M. Thompson, who had from the first a complete and perfect equitable right to the land, agreed with Conner that the latter should convey the naked legal title which he held to Mrs. Thompson, and that by such he recognized the judgments, and consented that they should constitute valid and binding liens on the land. This we understood to be the appellee's position from the beginning, and it seems to us the opinion given at the former hearing makes it clear that the position thus taken was not regarded by this court as tenable.

At the time the judgments through which the appellee claims title were taken, Conner had no interest whatever in the land, except that, without knowing the fact, he held the naked legal title, Thompson being in possession, and both supposing the latter had a perfect title. The authorities cited in the opinion abundantly show that, under such circumstances, no effectual lien whatever attaches, as against the actual owner of the land, especially where he is in possession. This, as we understand the appellee's argument, is not disputed. How, then, can it be said that the liens of the judgment are made more effective on account of the fact that, without any consideration whatever, Thompson consented that the title which Conner held should be conveyed to his (Thompson's) wife? There was no dispute but that the land belonged to Thompson. Conner set up no claim to it. He had no right in it. If he had conveyed the land to Thompson under the circumstances, and exacted from him, as a condition, such an agreement as that contained in the deed,—an agreement to pay for that which was confessedly his own,would any one claim that either Conner or his judgment creditors could have enforced the agreement thus enacted against Thompson? Hence we say again, as we said in effect before, that, no matter what voluntary agreement Thompson may have made with Conner, in order to get that which was, without adverse claim or dispute, his own, and no matter that, without any consideration, Mrs. Thompson accepted the deed with the stipulation referred to, the judgment liens were in nowise extended or enlarged. If the agreement had been supported by an adequate consideration, Mrs. Thompson would have been held estopped to assert that the land was not bound by the judgments which it was stipulated she should pay; or, if the appellee stood in the attitude of an innocent purchaser for value, like principles would afford him protection. In either case, protection would be afforded, not because the liens of the judgments against Conner were extended by any subsequent agreement, but because, by the subsequent agreement, supported by an adequate consideration, the appellant would have been estopped to show the facts. There is nothing in the record which calls for an application of the doctrine of estoppel. There is no such pretense.

The petition for a rehearing is overruled, with costs.