The Pittsburgh, Cincinnati and St. Louis Railway Company v. Adams. to make the coupling of certain cars standing on said switch to other cars attached to the locomotive of the train upon which the plaintiff was working, and that they find the position occupied by Andrew Mertens. "7. That the twentieth finding be made more perfect and definite by finding what the wrongful acts of the defendant were that caused the injury." That motion having been overruled, appellant moved for a venire de novo. This motion was also overruled. We think that the court below clearly erred in overruling these motions. The statute provides in relation to verdicts as follows: "The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment thereon to the court." R. S. 1881, section 545. The purpose of a special verdict is to avoid the mistakes that the jury may make in the application of the law to the facts. When a special verdict is demanded, the jury are to find the facts, and the court declares the law upon those facts; and hence it is well settled that a special verdict should be limited to the case as made by the pleadings, should find all the facts proven under the issues, and should not embody or state conclusions of law. If a special verdict includes findings of evidence, conclusions of law and matters without the issues, such findings will be disregarded in the determination and rendition of the judgment. If stripped of these matters, the verdict is yet sufficient to lead up to and support a judgment either way under the issues as made by the pleadings, a motion for a venire de novo will be overruled. Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186, and cases there cited; Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Dixon v. Duke, 85 Ind. 434; Louisville, etc., R. W. Co. v. Balch, ante, p. 93; Hasselman v. Carroll, 102 Ind. 153. As appellee's mother is not prosecuting this action, we can The Pittsburgh, Cincinnati and St. Louis Railway Company v. Adams. not see how it is of any importance whether appellee was employed by appellant with or without her consent. The third and fourth findings, therefore, may be disregarded. In the eleventh and fourteenth findings, it is stated that appellee received the injury without fault or negligence on his part. In the twelfth finding, it is stated that appellee exercised such care as might reasonably have been expected of him, considering his youth and inexperience. The fifteenth finding is, that appellant was careless and negligent in allowing the sliver or splint to remain and protrude from the rail. In the sixteenth finding, it is stated that appellant was guilty of negligence in running the train without brakemen. The twentieth finding is, that the injury was caused by the wrongful act of appellant. The twenty-first finding is, that it was negligence on the part of appellant to order an inexperienced person to perform the duties of brakeman and to couple cars, without first giving him proper instructions. In each and all of these findings in relation to wrong and negligence on the part of appellant, the jury, instead of returning the facts and leaving it for the court to pronounce the law upon those facts, returned conclusions which embody conclusions of law. This they had no right to do, and hence all such conclusions must be disregarded; and hence there is nothing properly in the verdict showing that appellant was in any way guilty of wrong or negligence as connected with the defective rail, or that it was guilty of any other wrong or negligence to the injury of appellee, unless other portions of the verdict show wrong and negligence upon its part in ordering him from the work for which he was employed, to a different and more hazardous work. That is a question we shall hereafter consider. Commencing with the decision of the English court in the VOL. 105.-11 The Pittsburgh, Cincinnati and St. Louis Railway Company v. Adams. case of Priestley v. Fowler, 3 M. & W. 1, in 1837, the decision of the Supreme Court of South Carolina in the case of Murray v. Railroad Co., 1 McMullan, 385, in 1841, and the decision of the Supreme Court of Massachusetts in the case of Farwell v. Boston, etc., R. R. Corp., 4 Met. 49, in 1842, it has become the settled law in England, Scotland and Ireland, and the States of this Union, with scarcely an exception, that, as a general rule, in the contract of hiring, there is an implied undertak ing upon the part of the master that he will use all reason able care to furnish safe premises, machinery, and appliances for conducting the business safely, and that he will use all reasonable care to furnish competent and prudent co-employees. The master, by the contract of hiring, does not become an insurer against injury to the servant. On the other hand, in the contract of hiring, there is an implied undertaking upon the part of the servant that he will exercise reasonable care to avoid injury, and that he assumes all ordinary risks incident to the business, and all risks from the negligence of his co-employees. When the master has kept and performed his implied undertaking, the servant can not recover from him for injuries resulting from the business, or the negligence of such co-employees, however dangerous the business may be. This general rule has been modified by statute in some of the States, but not in this State. The rule obtains, regardless of the fact that one employee may be the superior in rank to others in the same general undertaking or employment, unless he occupies the place of vice-principal. Pierce R. R. 358, and cases there cited; Wood Master and Servant, sections 326, 416, 425, and cases there cited; Madison, etc., R. R. Co. v. Bacon, 6 Ind. 205; Gormley v. Ohio, etc., R. W. Co., 72 Ind. 31; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440 (41 Am. R. 552); Robertson v. Terre Haute, etc., R. R. Co., 78 Ind. 77; Umback v. Lake Shore, etc., R. W. Co., 83 Ind. 191; Louisville, etc., R. R. Co. v. Orr, 84 Ind. 50; Brazil, etc., Coal Co. v. Cain, 98 Ind. 282; Indiana Car Co. v. The Pittsburgh, Cincinnati and St. Louis Railway Company v. Adams. Parker, 100 Ind. 181; Atlas Engine Works v. Randall, 100 Ind. 293 (50 Am. R. 798); Indianapolis, etc., R. W. Co. v. Johnson, 102 Ind. 352; Capper v. Louisville, etc., R. W. Co., 103 Ind. 305. The above general rule applies to minors. Pierce R. R. 360, and cases there cited; Wood Master and Servant, section 368, p. 744, and cases there cited; Thompson Neg. 977, and cases there cited; Ohio, etc., R. R. Co. v. Hammersley, 28 Ind. 371; Sullivan v. Toledo, etc., R. W. Co., 58 Ind. 26; Ohio, etc., R. R. Co. v. Tindall, 13 Ind. 366; Atlas Engine Works v. Randall, supra; Brazil, etc., Coal Co. v. Cain, supra. Out of this general rule has come the more specific one, that if the servant claims damages from the master for injuries received on account of defective premises, buildings, machinery or appliances, he must allege and prove that the unfitness or the defect, which caused the injury, was known to the master, or was such as, with reasonable diligence and attention to his business, he ought to have known. If the case before us is to rest alone upon the alleged negligence of appellant as connected with the alleged defective rail, then it must be shown that the rail was so defective when put in place by appellant, or, if it afterwards became worn and defective, that appellant knew of the defective and dangerous condition, or that it was defective and dangerous for such a length of time that appellant might and ought to have known of it by the exercise of reasonable attention, care and diligence. Thompson Neg., p. 971; Wood Master and Servant, sections 368, 414, and cases there cited; Atchison, etc., R. R. Co. v. Wagner, 33 Kan. 660 (21 C. L. J. 51); Schooner "Norway" v. Jensen, 52 Ill. 373; Indianapolis, etc., R. R. Co. v. Love, 10 Ind. 554. If the jury had found as a matter of fact, that appellant put down a defective and dangerous rail, or that it had actual knowledge of the defective rail, or had found and stated the length of time that it had been defective, and such other facts, if any, as surrounded the case, their verdict would have been a verdict of facts, and the court might then have de The Pittsburgh, Cincinnati and St. Louis Railway Company v. Adams. clared upon the facts, as a matter of law, that appellant was or was not guilty of negligence as connected with the rail. No such facts are stated in the special verdict, and hence there is nothing in that verdict to show that appellant was guilty of negligence in allowing the alleged defective rail to remain in use upon the road-bed. It is apparent that the jury meant to find that appellant was thus guilty of negligence, but they returned legal conclusions instead of the facts. The verdict is, therefore, defective upon its face, and so defective that judgment can not be rendered upon it, if, as stated, the case is to rest alone upon the alleged negligence of appellant in allowing the defective rail to remain in use. Appellee contends, however, that when injured he was not engaged in the work for which he was hired; that he was a minor, without experience in braking, operating trains and coupling cars; that he was wrongfully taken from the work for which he was engaged, and ordered by appellant to a more hazardous work, and that, therefore, the above general rule does not obtain, and that appellant is liable regardless of the fact as to whether or not it knew, or with reasonable care might have known, of the defective rail. The above general rule is not without its exceptions, modifications and limitations. The servant's implied assumption of risks is confined to the particular work and class of work for which he is employed. There is no implied undertaking, except as it accompanies and is a part of the contract of hiring between the parties. When the servant voluntarily, and without directions from the master, and without his acquiescence, goes into hazardous work outside of his contract of hiring, he puts himself beyond the protection of the master's implied undertaking, and if he is injured he must suffer the consequences. On the other hand, if the servant, by the orders of the master, is carried beyond the contract of hiring, he is carried away from his implied undertaking as to risks. If the master orders him to work temporarily in another department of the |