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to use reasonable care to avoid injury as the carrier is to use the greatest degree of skill and care to save the passenger from harm. Nor does the duty of the carrier extend to the imprisonment of the passenger, so as to prevent the latter, by recklessness or folly, from voluntarily exposing himself to needless peril. Though a passenger, he is nevertheless a free man. Railway coaches are provided with windows to promote the health of passengers, by affording light and ventilation, and that the tedium of a journey may be relieved in some degree, and its pleasure enhanced, by viewing the objects along the route. The place for a passenger is inside, not outside, of the coach, and this is known to everybody who ever saw a railway coach." In the case of Railroad Co. v. McClurg, 56 Pa. 294, where the person injured was riding with his arm protruding from the car window, and came in contact with a car standing on an adjoining side track, Thompson, C. J., delivering the opinion of the court, said: "A passenger, on entering a railroad car, is presumed to know the use of a seat and the use of a window; that the former is to sit in, and the latter is to admit light and air. Each has its separate use. The seat he may occupy in any way most comfortable to himself. The window he has a right to enjoy, but not to occupy. Its use is for the benefit of all, not for the comfort alone of him who has by accident got nearest to it. If, therefore, he sit with his elbow in it, he does so without authority; and if he allow it to protrude out, and is injured, is this due care on his part? He was not put there by the carrier, nor invited to go there, nor misled in regard to the fact that it is not a part of his seat, nor that its purpose was not exclusively to admit light and air for the benefit of all. His position is, therefore, without authority. His negligence consists in putting his limbs where they ought not to be, and liable to be broken, without his ability to know whether there is danger or not approaching. In a case, therefore, where the injury stands confessed, or is proved to have resulted from the position voluntarily or thoughtlessly taken in a window, by contact with outside obstacles or forces, it cannot be otherwise characterized than as negligence, and so to be pronounced by the court." In the case of Dun v. Railroad Co., 78 Va. 645, 49 Am. Rep. 388, a passenger was riding with his arm out of the window about two inches, when it came in contact with some cordwood piled beside the track. There the court said: "It seems to be the better rule, both upon authority and upon reason, that, the passenger being endowed with intelligence which enables him to foresee and to avoid danger, the exercise of at least ordinary prudence is required on his part to escape it, and if, by his failure to exercise these faculties for his own preservation, a misfortune befall him, though the carrier may have been in fault. it will be attributed to his own carelessness and inatten

64 N.E.-7

tion, and the responsibilities will not be thrown on the carrier." To the same effect are the well-considered cases of Favre v. Railroad Co., 91 Ky. 541, 16 S. W. 370; Railway Co. v. Underwood, 90 Ala. 49, 8 South. 116, 24 Am. St. Rep. 756; Todd v. Railroad Co., 3 Allen, 18, 80 Am. Dec. 49; Carrico v. Railway Co., 35 W. Va. 389, 14 S. E. 12; Railroad Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506.

The showing in the complaint that decedent was only 10 years of age is not of itself sufficient to prevent the application of the rule of contributory negligence. The complaint contains no allegation of incapacity, other than age. A great many authorities on this proposition are collected and reviewed in the case of Wolfe v. Peirce, 24 Ind. App. 680, 57 N. E. 555. If we concede that the com. plaint charges negligence on the part of appellee, it is plain that it also states a complete defense to the action which would arise therefrom, and does not state facts which I would void such defense. We find no error. Judgment affirmed.

OSTER v. BROE et al.1 (Appellate Court of Indiana. May 27, 1902.) On motion for rehearing. Denied. For former opinion, see 62 N. E. 640. Otto Gresham, Lee Dinwiddie, Frank Cutter, and A. C. Harris, for appellant. Fraser & Isham, for appellees.

PER CURIAM. Rehearing denied.

ROBY, J. (dissenting). The record herein was distributed to the writer in full court, pending the petition for a rehearing. The sole question under consideration related to the filing of the bill of exceptions containing the evidence. It is stated that the bill is not shown to have been filed after being signed by the judge. The correctness of this statement, made by the experienced and conscientious writer of the opinion, depends upon the construction to be given those parts of the record which are hereafter set out. There was an attempt to bring the evidence in under the act of 1899. A substantial compliance with the provisions of the acts of 1897 is, however, sufficient. Adams v. State (Ind. Sup.) 59 N. E. 24. The transcript of evidence authenticated by the certificate of the official reporter has the form of a bill of exceptions. Its conclusion is as follows: "And on the 22d day of December, 1899, the plaintiff tendered this, his bill of exceptions, and prayed that the same might be signed, sealed, and made a part of the record in this cause, which is accordingly so done this 22d day of December, 1899. [Signed] Joseph M. Rabb, Judge Benton Circuit Court." The clerk's certificate is as follows: "State of Indiana, Benton County-ss.: I, Alonzo D. Sleeper, clerk of the Benton circuit court, of said state, do

1 Superseded by opinion, 64 N. E. 918. Rehearing denied.

98

hereby certify that on the 23rd day of December, 1899, the plaintiff in the case of Antone Oster v. Geo. W. Broe et al. filed in my office as such clerk the above and foregoing original longhand manuscript of the evidence given in said cause, as taken down and certified by L. D. Patton, the official reporter of said court in said cause. Witness my hand and seal of said court, this 23d day of December, 1899. Alonzo D. Sleeper, Clerk Benton Circuit Court. [Seal.]" He also attaches a second and further certificate as follows: "State of Indiana, Benton County-ss.: I, Alonzo D. Sleeper, clerk of the Benton circuit court, of said state, do hereby certify that the above and foregoing certificate, purported to be signed by the Honorable Joseph M. Rabb, judge of the Benton circuit court, is the certificate of Joseph M. Rabb, who was the judge of the Benton circuit court before whom the case of Antone Oster v. Geo. W. Broe et al. was tried in said court, and that the signature thereto is the genuine signature of said Joseph M. Rabb as such judge, and the transcript to which the same is attached is the transcript of the evidence given in said cause, as filed in my office by L. D. Patton, official reporter of said court, and that the same was filed in my office by said reporter on the 23d day of December, 1899, and that at the time of the filing of the same the said Joseph M. Rabb as such judge attached his certificate thereto. And I do further certify that the above and foregoing transcript, containing 165 pages, including the said certified transcript of the evidence aforesaid, is a full, true, and complete transcript of all the evidence in said cause. In witness whereof, I have hereunto set my hand and affixed the seal of said court, this day of December, 1899. Alonzo D. Sleeper, Clerk Benton Circuit Court. [Seal.]" I do not think that it is a question of names, and regard the certificate as sufficient to show the filing of the bill one day after its signature by the judge. I therefore dissent from the conclusion reached on the petition, and make this statement in order that the question may be fairly presented to the supreme court upon a motion to transfer, if made, and a question of practice of general importance be authoritatively settled.

(29 Ind. App. 185)

CITIZENS' ST. R. CO. v. BROWN. (Appellate Court of Indiana, Division No. 2. May 27, 1902.)

MASTER AND SERVANT-PERSONAL INJURIES -NEW EMPLOYMENT-HAZARD-PLEADING. A complaint alleged that plaintiff was employed by defendant to work in its barn and care for its mules, and for no other service, and that without cautioning him defendant directed him to assist in moving some iron frogs; that the work was dangerous, as defendant knew, to one unskilled; and that plaintiff was ignorant of the danger, and without his fault or negligence, while attempting to assist in such work, he "was pulled over," his hand

caught, etc. Held, that it did not appear that the work was hazardous, and, as no facts showing danger were alleged, or anything showing that the work was negligently done, no cause of action was stated.

Appeal from superior court, Marion county; James M. Leathers, Judge.

Action by Edward F. Brown against the Citizens' Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Ferdinand Winter, Samuel O. Pickens, and Will H. Latta, for appellant. Wilborn Wilson and Gardiner, Barrett & Brown, for appellee.

WILEY, C. J. Appellee sued appellant to recover damages sustained while he was in its service as an employé, and recovered a judgment for $1,200. The record shows that his complaint was in two paragraphs. The first is called an "amended complaint." To this paragraph appellant answered, setting up a written release, whereby appellee, for an express consideration, released it from liability on account of the injury complained of. Thereupon appellee filed an additional paragraph of complaint, differing only from the "amended complaint" in that it pleaded facts in avoidance of the release alleged to have been executed by appellee. The court below overruled a demurrer to each paragraph of the complaint, and such ruling is challenged by the assignment of error.

The amended complaint avers that in August, 1890, appellee was employed by appellant to work in its barn to care for its mules, and was not employed to perform any other service; that in January, 1894, appellant, by its agent, to whose order he was bound to and did conform, and without explaining the duties and dangers thereof, and without giving him any instructions, or cautioning him as to such new work, directed him to assist in moving some iron frogs and other heavy material; that said work was dangerous, as appellant well knew, to a person unaccustomed to and unskilled in such work; that he was ignorant of the duties and dangers incident thereto; and that, without fault or negligence on his part, in attempting to assist in said work, he was pulled over, his hand caught, his fingers mashed, his wrist, hand, and arm sprained, etc. As the acts of negligence charged in the second paragraph are the same as in the amended complaint, we omit further reference to it. The acts of negligence, as charged in the complaint, may be reduced to two simple propositions: (1) In ordering appellee to assist in moving an iron frog, which was of itself a hazardous undertaking, which appellant knew was hazardous, and of which appellee was ignorant; (2) that while engaged in assisting to remove the frog he was pulled over and injured.

In charging that appellee was ordered to assist in removing "other heavy materials," no issuable fact is presented; for we are left

in ignorance of what such other heavy materials consisted. The charge is too vague and uncertain. The complaint does not even describe what an "iron frog" is; but, aided by common knowledge, we know what it means when used in connection with railroads. The simple question for decision is this: Is it a hazardous or dangerous undertaking for a person unaccustomed and unacquainted with such work to assist in moving such a device? Under the averments of the complaint, we do not think any act of negligence is charged against appellant. The complaint does not disclose any state of facts to show that such work was hazardous. The mere statement that it was dangerous, that appellant knew it, and that appellee was ignorant of the danger, does not make it so. The act of assisting to move a heavy piece of iron, such as a railroad frog, is not of itself dangerous.

There is no averment in the complaint that the danger was latent. It follows, therefore, that, if it was a dangerous undertaking, the danger was as obvious to appellee as to appellant. Courts have never held that a servant who is ordered to perform labor outside of the scope of his employment, as fixed by his contract, is not bound to exercise ordinary care to secure his own safety. Nor has it ever been held that a servant can recover 'from his master for injury received in the line of his employment, which he might have avoided by the exercise of ordinary care. And the rule is also that, where dangers are as open, obvious, and apparent to the servant as to the master, the former assumes the risks, and cannot recover for injuries received. The complaint fails to aver that the dangers to which appellee was subjected were not apparently such that they could have been avoided by the use of ordinary care. In Weis v. City of Madison, 75 Ind. 241, 39 Am. Rep. 135, it was said: "The question of negligence or no negligence is to be determined from the facts pleaded, and the presence or absence of general epithets adds no real force to the facts stated. If the facts stated are sufficient to show negligence, the absence of epithets does not impair their force. If they are not sufficient, no mere epithets ca supply the want."

The complaint before us charges that appellee was directed to perform a service outside of his regular employment, and avers that such additional service was in itself dangerous, that appellant knew it was dangerous, and that appellee was ignorant thereof. There is no averment that the place where appellee was directed to work was a dangerous place, nor that the frog he was directed to assist in moving was in itself dangerous to handle. We cannot, under the facts pleaded, bring ourselves to the unsupported conclusion that there is any more hazard in moving an iron frog than there is in any common, ordinary labor, where special skill is not required. The complaint does not even state what weight the frog was, how it was constructed,

how and where appellee took hold of it, or how he was "pulled over"; and there is no connecting or causal relation alleged to exist between the acts with which appellant is charged and the injury which it is alleged the appellee received. The act or proximate cause of appellee's injury was being "pulled over" while he was assisting to move the frog, and in this particular act of being "pulled over" the complaint fails to charge any negligence on the part of appellant. If appellant's injuries were occasioned by being "pulled over" while assisting to move a "frog," and this must be taken as true, for it is so charged in the complaint, then the complaint is fatally defective for failing to aver that the act was negligently done. The act done, or omitted to be done, upon which negligence is based, should be characterized in the complaint as having been negligently done, or negligently omitted. Railway Co. v. Hicks, 11 Ind. App. 588, 37 N. E. 43, 39 N. E. 767. The complaint does not charge that appellee was pulled over by the appellant, or that it was done by anything in connection with the work that was known to be dangerous, or by anything or in any manner of which the plaintiff was ignorant or of which appellant had knowledge, or by anything that was produced or brought about or was the result of any act or conduct upon the part of appellant. See Reed v. Browning, 130 Ind. 575, 30 N. E. 704; Town of Williamsport v. Smith, 2 Ind. App. 360, 28 N. E. 156; Becker v. Baumgartner, 5 Ind. App. 576, 32 N. E. 786; Stone Co. v. Wray, 10 Ind. App. 324, 37 N. E. 1058; Stone Co. v. Redmon, 23 Ind. App. 319, 55 N. E. 454; Guedelhofer v. Ernsting, 23 Ind. App. 188, 55 N. E. 113.

The complaint being insufficient against a demurrer, errors, if any, subsequent to the ruling thereon, need not be considered. Judg. ment reversed, and the court below is directed to sustain the demurrer to each the amended and second paragraph of complaint.

(29 Ind. App. 202)

HUFFORD v. LEWIS. (Appellate Court of Indiana. Division No. 1. May 27, 1902.)

ESTOPPEL-PLEADING SUFFICIENCY-TRIAL -ENTRY OF JUDGMENT-INSTRUCTIONS. 1. Where a verdict was rendered at the January term, and a motion for a new trial filed during the term was overruled at the March term, a judgment rendered on such verdict at the following September term is not invalid, as being rendered after the termination of the action; the proceeding being in fieri until judgment is rendered.

2. Alleged error in giving a series of instruc tions jointly is not available as ground for a new trial, unless all of the instructions are er

roneous.

3. In an action for rent of certain personalty, an answer alleging that plaintiff had represent ed to defendant that he had sold the property a year before to a third person, who was in possession and from whom defendant purchased, sets up an equitable estoppel; it not being necessary to allege plaintiff's actual knowledge

of the facts, nor that the representations were made with intention that defendant should act on them.

Appeal from circuit court, Clinton county; James V. Kent, Judge.

Action by John Hufford against Elmer E. Lewis. From a judgment in favor of the defendant, the plaintiff appeals. Affirmed.

John C. Rogers and Brumbaugh & Combs, for appellant. Joseph P. Gray, for appellee.

ROBINSON, J. Action by appellant in two paragraphs to recover rental of certain personal property. The case was tried before a jury, and a verdict in appellee's favor rendered on the 16th day of the January term, 1899. A motion for a new trial was filed on the thirty-eighth day of the same term, and was overruled on the second day of the March term, 1899. Nothing seems to have been done in the case at the June term, 1899, and on the twelfth day of the September term, 1899, judgment was rendered on the verdict. On the twenty-fifth day of the same term appellant specially appeared and moved to vacate the judgment, upon the ground that, when the judgment was rendered, the cause was not in fieri. While proceedings are in fieri, the court has full power over its record, and may, upon motion, modify or set aside its orders and judgments. At common law a motion for a new trial could not be filed after the rendition of judgment, and proceedings were in fieri until the close of the term at which judgment was rendered. As the Code permits a motion for a new trial to be filed after judgment, the proceedings are in fieri until the close of the term at which the motion for a new trial is disposed of. McClellan v. Binkley, 78 Ind. 503. The reason for this rule is that, after the motion for a new trial is disposed of, the court already having rendered judgment, nothing more remains to be done. But, until judgment is rendered, the proceedings are in fieri under the Code, as they were at common law; and, if the motion for a new trial precedes the rendition of judgment, the common-law rule still prevails. the case at bar the proceedings were not terminated until judgment was rendered. The trial court had authority to continue the case until final disposition was made of it by the rendition of a judgment, and, in the absence of some showing to the contrary, it will be presumed the cause was regularly continued, and that there was sufficient ground for so doing. The jurisdiction of the court, once rightfully acquired, continues, without further notice, as long as there are any steps to be taken necessary to the conclusion of the case. Durre v. Brown, 7 Ind. App. 127, 34 N. E. 577, and cases cited.

In

It is assigned as one of the causes for a new trial that "the court erred in giving instructions numbered 1, 2, 3, 4, 5, 6, 8, 9, 92, 10, 11, and 12 of its own motion." It is not and could not be claimed that all these instructions are erroneous. Overruling a motion

for a new trial assigning as cause therefor the giving of a series of instructions jointly is not available error, unless all such instructions are erroneous. Railroad Co. v. Cregor, 150 Ind. 625, 50 N. E. 760; Lawrence v. Van Buskirk, 140 Ind. 481, 40 N. E. 54; Saunders v. Montgomery, 143 Ind. 185, 41 N. E. 453.

In appellant's complaint he claims to be the owner of one-half the property. The amended second paragraph of partial answer to the first paragraph of complaint alleges that appellee purchased the one-half interest described in the complaint from one James Hufford, and paid him therefor; that James Hufford had at the time, and for more than a year prior thereto had had, the possession of the same, claiming to be the owner; that "at divers times during said period of time, and immediately before the time of said purchase of said property by defendant, the plaintiff, in the presence of and to the defendant, represented and said that the said James Hufford was the owner of said property, and that said James Hufford had purchased the same from him (the plaintiff); that the defendant, relying on said representations of the plaintif and believing them to be true, did not know that said plaintiff had or claimed any interest in said property, and, believing that said James Hufford was the owner of said property, he (defendant) purchased" the same, and had fully paid James Hufford therefor long before appellant made known to him that he claimed any interest in it; that James Hufford is and has been since such purchase wholly insolvent. Wherefore appellant should be estopped from claiming any interest in such property after the time of such purchase. It is argued that this answer does not contain the essential elements of an estoppel. The representations made by appellant were material facts. Appellee did not know that appellant claimed any interest in the property; and, relying upon the representations, purchased the property. It is not expressly alleged that appellant had actual knowledge of the facts; but the representations made by him were made under such circumstances that a knowledge of the truth is necessarily imputed to him. Nor is it expressly alleged that the representations were made with the intention that appellee should act upon them. But the property had been sold by appellant to appellee's vendor, who was then in possession. This vendor had the apparent title and power of disposition, and had been clothed with these by appellant. Applying the language used by the author in 2 Pom. Eq. Jur. (2d Ed.) § 811: "There is, however, a large class in which not only an intention directed toward a particular individual, or toward individuals in general, is absent, but a contrary intention that the party's representation is not to be acted upon at all may be present. The class includes all those instances where an owner of things in action or of chattels has, either designedly or negligently, clothed a third person with the apparent title and pow

er of disposition, and this person transfers
them to a purchaser in good faith, who relies
upon the apparent power of sale they con-
ferred upon him. The original owner is estop-
ped from asserting his right of property, and
the bona fide purchaser acquires a perfect title
by estoppel, in direct contravention of the
rules of law which would otherwise control."
The answer pleads an equitable estoppel, and
is within the doctrine that "when one of two
innocent persons-that is, persons each guilt-
less of an intentional, moral wrong-must suf-
fer a loss, it must be borne by that one of
them who by his conduct, acts, or omissions,
has rendered the injury possible." 2 Pom.
Eq. Jur. (2d Ed.) § 803 et seq. In Brickley v.
Edwards, 131 Ind. 3, 9, 30 N. E. 708, 710, the
court said: "Admissions which have been
acted upon by others are conclusive against
the party making them in all cases between
him and the person whose conduct he has
thus influenced. This is true, whether the
admission or declaration is made in express
language to the person himself, or is made in
general terms, or may be implied from the
open and general conduct of the party. His
open and general statements may be consider-
ed as addressed to every one who may have
occasion to act upon them." In Maxon v.
Lane, 124 Ind. 592, 24 N. E. 683, the court
said: "If a party induces another to change
his position and expend a large sum of money,
equity will not permit such a party to reap
any advantage from the change to the preju-
dice of the other; nor will it permit him to do
what he expressly or impliedly promised not
to do.
It is not necessary, in order

to create an estoppel, that the person who
makes the representations upon which an-
other acts should, at the time of making
them, intend to defraud the person to whom
they are made; for the fraud consists in sub-
sequently attempting to gainsay or deny the
representations to the injury of the person
who acted upon them." See 2 Pom. Eq. Jur.
(2d Ed.) §§ 803, 805.
Judgment affirmed.

SEILER v. STATE ex rel. BOARD OF
COM'RS OF DE KALB COUNTY, 1
(Appellate Court of Indiana. May 27, 1902.)
APPEAL-TRANSFER OF CAUSE TO SUPREME
COURT-DISAGREEMENT OF JUDGES.

Where one of the judges of the appellate court is disqualified as being of counsel, and four of the judges are unable to agree, the case will be transferred to the supreme court, under the direct provision of Acts 1901, c. 247, § 15.

Appeal from circuit court, De Kalb county; E. D. Hartman, Judge.

Action by the state, on the relation of the board of commissioners of De Kalb county, against Frank P. Seiler. From a judgment in favor of plaintiff, defendant appeals. Case transferred to supreme court.

Frank S. Roby and Samuel A. Harper, for appellant. P. V. Hoffman and D. M. Link, for appellee.

PER CURIAM. One of the judges being of counsel in this case, and hence being disqualified to sit, and four of the judges being unable to agree upon a decision, this cause is transferred to the supreme court under the act of March 12, 1901.

(29 Ind. App. 196)

BOOKER et al. v. KILLION.
(Appellate Court of Indiana, Division No. 2.
May 27, 1902.)

JOINT APPEAL-EXCEPTIONS BY PART ONLY
OF APPELLANTS.

Where, on a joint appeal by four defendants, the error jointly assigned is that the court erred in its conclusions of law on the facts found, while at the time the court announced its findings of facts and conclusions of law only two of the appellants excepted to the conclusions of law, the judgment appealed from will be affirmed without considering the merits.

Appeal from circuit court, Daviess coun-. ty; James T. Rogers, Special Judge.

Action by Alexander Killion against Owen O. Booker and others. From a judgment for plaintiff, defendants appeal. Affirmed.

O'Neall & Hoffman, for appellants. gett & Padgett, for appellee.

Pad

COMSTOCK, J. Appellee brought this action in ejectment against appellants and Rankin & Rankin to recover possession of certain real estate described in the complaint. Appellants answered by general denial. Rankin & Rankin filed a disclaimer. The court made, upon proper request, a special finding of facts, stated conclusions of law thereon, and rendered judgment in favor of appellee and against appellants for the possession of the land and for one cent. damages. Upon this appeal the error assigned is that the court erred in its conclusions of law upon the facts found. Appellee, before discussing appellants' brief, moved to dismiss appeal. This motion is based upon the following facts, disclosed by the record: At the time the court announced its finding of facts and conclusions of law only two of the appellants, Owen Booker and Benjamin Feney, excepted to the conclusions of law. The other appellants did not at any time except. The assignment of error is joint by the four appellants. It is settled law in this state that in ordinary adversary proceedings. in order to save any question for review in an appellate court, not only must the exceptions be taken at the time the decision is made, but they cannot be taken after that time. Railroad Co. v. Dykeman, 133 Ind. 63, 32 N. E. 823, and cases cited: Smith v. McKean, 99 Ind. 101; Kolle v. Foltz, 74 Ind. 54; Johnson v. Bell, 10 Ind. 363; Coan v. Grimes, 63 Ind. 21; Dickson v. Lambert, 98 Ind. 487; Railroad Co. v. Leviston, 97 Ind. 488; Mat

Transferred to Supreme Court, 65 N. E. 922; 66 N. E. 916. Rehearing denied, 67 N. E. 448.

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