Appellee's contention is that, as by statute (section 8888, Burns 1908), grass plots on streets are provided for, stretching wires across and along them to protect them cannot be regarded as unlawful, or as obstructions, and that under the doctrine of Teague v. City of Bloomington, 40 Ind. App. 68, 81 N. E. 103, and cases there collected, a city is not liable.

[1] Whatever may be the logical grounds for the distinction, if any, between cities being liable for negligence arising from the condition of streets, and nonliability of counties and townships for defects in highways, the doctrine seems now too well settled in this state to be called in question, or the reasons sought to be explained. A late edition of Dillon on Municipal Corporations discuss

Munic. Corp. (5th Ed.) §§ 1713-1717, both inclusive. We are not advised by the complaint as to the purposes to which the strip between the sidewalk and the curb of the roadway was put, or whether the wire or string was at the intersection of the streets, but assume that they were, and that they were put there to protect a grass plot, and the case is so treated by counsel.

immediately adjoining the curbing and onehalf foot apart, and a third stake at right angles to and four feet and nine inches south of the western rod, from the tops of which rods or stakes for 30 days prior to April 10, 1907, there had been stretched a string or fine wire at a distance of about one foot from the ground, which the city had notice of, or could have known by the exercise of ordinary diligence, but carelessly and negligently permitted to remain, knowing that hundreds of people passed the place daily, and many people passed over the spot where the wire or string and rods were located, and that the string or wire and rods were in that condition dangerous, and that there was nothing to warn the public of their existence except the obstruction itself, and that at night it was impossible for es the question somewhat fully. Dillon, pedestrians to know of their existence, and there was no light within 80 feet of the place; that West Jefferson street at the point was a much traveled street, and that for a long time prior to April 10, 1907, the public and citizens generally were in the habit of walking across that part of the strip of ground where the rods were placed, and that in walking upon the strip at that point it was impossible to see the rods, string, or wire because of the intense darkness at that point, and because there was nothing to warn the public of the danger of crossing or walking thereon; that there was no grass at the point, and it had the appearance of being frequently traveled by the public, and that it was a part of the public highway for travel, all of which plaintiff believed, having been deceived into thinking said point was for public travel by its said appearance. Other allegations sufficiently bring notice to the city." It is then alleged "that about 10 o'clock p. m. on the 9th day of April, 1907, at a time when it was intensely dark, and plaintiff not knowing of the existence of said rods, wire, or string in the place and condition as herein alleged, and plaintiff, though having good eyesight, being unable to see the same, to catch a car that was upon said Broadway, ran west on said West Jefferson street, carrying a camera and case, containing a flashlight apparatus, and in running to catch said car followed the beaten path of said highway, across which was stretched the rods, wire, and string, said wire, string, and rods being of the same color as the ground, and a person in an upright position being unable to see or ascertain the existence of the same, and plaintiff without fault on his part ran into said wire, string, and rods, which defendant carelessly and negligently permitted to remain in the dangerous condition and place as aforesaid, there being no light or guards to warn plaintiff of the existence of the same, which rods, wire, and string tripped this plaintiff, and violently hurled him to the asphalt pavement, whereby he was greatly injured," the specific in

[2] We do not attach any importance to the allegation that there were no lights to light the locality except as it might be a factor in determining reasonable care as to the alleged obstruction itself, as a city is under no legal duty to light any locality, nor does negligence arise as a matter of law from the mere fact of its absence. Dillon, Munic. Corp. (5th Ed.) § 1701; Town of Spencer v. Mayfield, 43 Ind. App. 134, 85 N. E. 23; Mitchell v. Tell City, 41 Ind. App. 294, 83 N. E. 734; City of Vincennes v. Spees, 35 Ind. App. 389, 74 N. E. 277; City of Vincennes v. Thuis, 28 Ind. App. 523, 63 N. E. 315; White v. New Bern, 146 N. C. 447, 59 S. E. 992, 13 L. R. A. (N. S.) 1167 and note, 125 Am. St. Rep. 476. If the complaint is sufficient, it must be because it shows conditions which required the city to erect barriers, or maintain danger signals, and, if that duty is shown, it must arise from the alleged fact that many people daily passed over the place, and it appeared to be a worn and traveled way, whereby appellant was induced into a false sense of security in passing over it. There was a sufficient unobstructed sidewalk, and appellant in his hurry took a short cut, and the question is, Was he justified in his inference of a clear way and a right of travel there, in the absence of warning signals? The cases are numerous in which it has been held that the full width of a roadway or sidewalk must be kept reasonably free from obstructions in all its parts. Elam v. Mt. Sterling, 132 Ky. 657, 117 S. W. 250, 20 L. R. A. (N. S.) 512, note "c," 588, 591; City of Atlanta v. Milam, 95 Ga. 135, 22 S. E. 43; Elliott on Roads and Streets (5th Ed.) § 645. Many cases hold that such erec

[6] Here we have a physical obstruction in a populous district in a large city, where the public may be reasonably assumed to have a large discretion and choice in the use of the street and walks of such character that it is alleged that it could not be seen in the darkness in a place indicating that it was a line of travel with an allegation that it was much traveled, and of a character likely to become a snare and trap.

hitching posts, stepping stones, and other bar- | Kalamazoo, 109 Mich. 176, 66 N. W. 1089; riers outside the sidewalk or roadway prop- Coolidge v. New York, 99 App. Div. 175, 90 er in grass plots or town pumps or fountains N. Y. Supp. 1078, affirmed in 185 N. Y. in streets are not obstructions for which a 529, 77 N. E. 1192. city is liable as for nuisances. These cases seem to be grounded on the proposition that, so long as there remains reasonable space outside the obstruction, a city is not remiss in allowing the obstruction, especially where they are of a public utility character (Lostutter v. City of Aurora, 126 Ind. 436, 26 N. E. 184, 12 L. R. A. 259; Teague v. City of Bloomington, supra; City of Vincennes v. Thuis, supra; Dougherty v. Trustees, 159 N. Y. 154, 53 N. E. 799); still other cases holding a qualified doctrine as to obstructions or excavations so near a roadway or sidewalk that danger may reasonably be apprehended from the ordinary and reasonable use of the way or walk, in which cities have been held liable for injuries arising therefrom as to those using ordinary care. A number of cases are collected in City of Vincennes v. Spees, supra. See, also, Elam v. Mt. Sterling, supra, 132 Ky. 657, 117 S. W. 256, 20 L. R. A. (N. S.) note "b" 593 et seq.; Cases in note to Shea v. Whitman, 20 L. R. A. (N. S.) 980; Spencer v. Mayfield, supra ; Birch v. Charleston, etc., Co., 113 Ill. App. 229.

[3, 4] Whilst cities are not required to light streets, and no recovery can be had in the absence of lights from that cause, yet if an obstruction exist which does create an ac

tionable nuisance, the presence of lights might render that nuisance non actionable by virtue of their presence as obstructions for public convenience which the presence of lights would disclose, but a traveled way or one prepared and indicated as for travel must be kept in a reasonably safe condition for the ordinary modes of travel by night as well as by day, and it is a question for a jury whether ordinary and reasonable care has been exercised in keeping it free from obstructions, or guarding the public against danger from the obstruction, thus leaving the method of discharging the duty to the municipality, subject to the judgment of a jury as to whether the method adopted or the thing done is a sufficient discharge of the duty, unless it be a case where fairminded men could not honestly differ upon the question, or reach but one conclusion. Mitchell v. Tell City, supra; Thunborg V. Pueblo, 45 Colo. 337, 101 Pac. 399; Culverson v. Maryville, Mo., 67 Mo. App. 343.

Whether it was reasonable care on the part of appellee to leave it as it was, or whether appellant's negligence contributed to his injury, should be determined by a jury under all the circumstances and factors involving both reasonable care on the part of the city and appellant, and the judgment is reversed, with instructions to the court below to overrule the demurrer to the complaint, and for further action not inconsistent with this opinion.

DEARING v. COULSON. (No. 7,252.) (Appellate Court of Indiana, Division No. 2. Oct. 5, 1911.)

1. EXECUTORS AND ADMINISTRATORS (§ 256*)— CLAIMS FOR SERVICES-REVIEW-FINDINGS -CONCLUSIVENESS.

dence on appeal in an action against an executor The Appellate Court cannot weigh the evifor services rendered to testatrix.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 256.*]

2. APPEAL AND ERROR (§ 971*)-DISCRETION OF TRIAL COURT REQUIRING PARTY TO TESTIFY.

In determining whether the discretion of the trial court in requiring a party to testify pursuant to Burns' Ann. St. 1908, § 526, has been abused, each case must be determined upon its own merits.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. § 971.*]

3. APPEAL AND ERROR (§ 971*)-DISCRETION OF TRIAL COURT - REQUIRING PARTY TO TESTIFY.

The abuse of the trial court's discretion in

requiring a party to testify as permitted in its discretion by Burns' Ann. St. 1908, § 526, must be palpable to warrant a reversal upon that ground, especially in a trial by the court in an action against an executor for services rendered decedent, in which plaintiff was required to testify, since the court is the conservator of es

tates.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 971.*]

4. WITNESSES (§ 133*)-TESTIMONY OF PARTIES CLAIMS AGAINST ESTATES - DISCRETION OF TRIAL COURT.

[5] Greater diligence or care may be required in case of a much traveled way or walk than where it is little used in case that fact is a factor in determining what is reasonable care. Forker v. Sandy Lake, 130 Before plaintiff was called to testify in an Pa. 123, 18 Atl. 609; Miller v. Canton, 112 action against an executor for services rendered Mo. App. 322, 87 S. W. 96; Welsh v. Ames- by her to decedent, another witness had testified that she was in decedent's home eight weeks aftbury, 170 Mass. 437, 49 N. E. 735; Hennepin er plaintiff commenced work, and that decedent v. Coleman, 132 Ill. App. 604; Moore v.in speaking of plaintiff's excellent qualities as a

housekeeper stated that she intended to will plaintiff 10 acres, including the house, etc., for doing her work. Held that, in view of such other evidence as to plaintiff's services, the trial court, sitting without a jury, did not abuse its discretion in permitting her to testify as to her contract with decedent; it appearing that the court did not wholly rely upon plaintiff's evidence because the recovery was for less than one-half of the demand, and was based upon other evidence than plaintiff's.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 566-569; Dec. Dig. § 133.*]

Appeal from Circuit Court, Pike County; E. A. Ely, Judge.

case of this kind, the court "may in its discretion require a party to a suit or other person to testify, and any abuse of such discretion will be reviewable upon appeal." Prior to 1883 the action of the court in exercising the discretion of requiring a party to testify in such cases was not subject to review. Perrill, Adm'r, v. Nichols, 89 Ind. 446. The present statute, however, expressly provides for the review of the discretion exercised by the trial court, and it becomes the duty of the court on appeal to examine into the circumstances under which the discretion was exercised.

[2] It has been held that every case wherein the discretion has been exercised must

Action by Ella Coulson against William P. Dearing, executor. From a judgment for plaintiff, defendant appeals. Affirmed. Richardson & Taylor and W. D. Curll, for necessarily be determined upon its own merappellant. Ely & Greene, for appellee.

its, and no general rule which would be applicable in all cases can be laid down. Talbott, Adm'r, v. Barber, 11 Ind. App. 1, 12, 38 N. E. 487, 54 Am. St. Rep. 491; Willetts, Adm'r, v. Schuyler, 3 Ind. App. 118, 29 N. E. 273; Forgerson v. Smith, Adm'r, 104 Ind. 246, 3 N. E. 866.

ADAMS, J. The appellee filed her claim for $1,411 against the estate represented by the appellant. The claim was for personal services alleged to have been rendered by the appellee to the appellant's testatrix, and to have been rendered pursuant to an agree[3] If, as we have seen, every case in ment with the testatrix that she would pay which the court has exercised a discretion appellee for the services agreed upon by de-in requiring a party to testify must be devising to her a certain ten acre tract of land, that the services were of the value of $1,411, and had been rendered pursuant to such agreement, but that the testatrix had not complied with said agreement, and had not devised to appellee said real estate. The cause was submitted to the court for hearing, which resulted in a finding and judgment for the appellee in the sum of $600. A motion for a new trial was filed and overruled, and this constitutes the only error assigned in this court.

The motion for a new trial was upon the grounds that the court erred in requiring and permitting the claimant to testify as a witness; that the recovery is too large; that the decision of the court is not sustained by sufficient evidence, and is contrary to law. The testimony given in the case was oral, and to some extent conflicting, but it was clearly established by all the evidence that appellee had rendered some service to the testatrix, and that said service had some value.

[1] We cannot weigh the evidence on appeal in a case of this kind, and as to the recovery being excessive, and not sustained by the evidence, we cannot say that the court erred in overruling the motion for a new trial on such grounds. The important question, however, raised by the motion for a new trial, and the question argued at length by counsel on both sides, relates to a review of the discretion of the trial court, exercised in requiring the appellee to testify in the case. The record shows that the court of its own motion required the claimant to testify. By section 526, Burns' 1908, in a

termined upon its own merits, and no general rule can be laid down with reference thereto, the abuse of that discretion must be very palpable to warrant a reversal upon that ground alone. Especially is this true in cases submitted, as this case was, to the court, which is the conservator of estates within its jurisdiction, and is in a peculiarly favorable position to pass upon the fairness and justice of exercising such discretion. In the case of Talbott, Adm'r, v. Barber, supra, this court indicated that there could be no abuse of discretion in requiring a party to testify after a prima facie case had been made out by the testimony of other competent witnesses. And in Jonas v. Hirschberg, 40 Ind. App. 88, 79 N. E. 1058, this court indicated that, where there is indefinite evidence of the terms of an alleged written contract, there was an abuse of discretion for the court to require the party most interested to testify to the contents of the alleged written agreement.

The important element in the case at bar is to establish the agreement of the testatrix to devise real estate in payment of the services of appellee. If this agreement is not established, then no recovery can be had in any amount, as the claim is shown to be barred by the statute of limitations.

[4] Before appellee was called by the court in this case, one Lydia Willis, a competent witness, had testified that she was in the home of testatrix eight weeks after appellee commenced work, and that testatrix in speaking of appellee and of her excellent qualities as a housekeeper said to the witness that "she intended to will her ten acres, including

the orchard, house and barn, she said for ADAMS, J. On the 9th day of May, 1907, doing her work." While this is not absolute the appellant leased certain real estate in proof of an agreement, it is a strong circum- the city of Indianapolis to appellee for the stance indicating that such agreement had term of five years, from the 1st day of June, been made, and we think warranted the 1907, at a rental of $30 per month for the court in requiring the appellee to give her first two years, and $35 per month for the version of the contract. If there was any- remaining three years. The lease was in the thing in the testimony of appellee or in her usual form, except a provision "that the tenmanner of testifying that raised a doubt as ant now occupying above-described premises to her candor and truthfulness, the court is not to be disturbed during the term of his would naturally exclude her evidence from present liquor license, provided he pays consideration. That the court did not whol- above rent." The appellee failed to pay the ly rely upon the testimony of appellee is rent for the months of November and Deshown by the fact that the recovery is less cember, 1907, and the appellant brought suit than fifty per cent. of the demand, and was to collect the same. clearly predicated upon the evidence of others who testified as to the extent and the value of the service.

The complaint is in one paragraph, and sets out a copy of the lease, and avers failure to pay the rent, as therein provided. Ap

Finding no reversible error in the record, pellee answered in three paragraphs. the judgment is affirmed.

The

second paragraph alleges that the appellant did not deliver possession of the leased premises to the appellee on June 1, 1907, nor since said date, notwithstanding the tender of pay

VOSS V. CAPITAL CITY BREWING CO. ment; that there was therefore a failure of

(No. 7,316.)

consideration. The third paragraph of an

(Appellate Court of Indiana, Division No. 2. swer alleges that the appellee paid the ap

Oct. 13, 1911.)

pellant the stipulated rent of $30 per month, for a period of five months from June 1st, and demanded possession of said premises from appellant, which was, and ever since has been, refused; that during the five months appellee paid rent to the appellant the occupant of said premises left with appellee, at its office, the sum of $16, on the 1st day of every month, but received no re

2. LANDLORD AND TENANT (§ 130*)-LEASE-ceipt therefor; and that all of the money so COVENANT FOR QUIET ENJOYMENT.

A covenant for quiet enjoyment is implied in every lease of land.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 470-481; Dec. Dig. § 130.*]

3. LANDLORD AND TENANT (§ 231*) - LIABILITY FOR RENT-EVIDENCE-SUFFICIENCY. In an action for rent, defended on the ground that tenant had never been given possession, evidence held to support a finding that the tenant had not, by his agent, accepted rent from the occupant, so as to make the occupant a subtenant of the teuant, authorizing a judg

ment for the tenant.

left by the occupant was tendered to the appellant by the appellee on the 1st day of November, 1907.

The appellant demurred separately and severally to the second and third paragraphs of answer for want of sufficient facts to constitute a cause of defense. The court overruled the demurrer to each paragraph, and appellant replied in two paragraphs to the second and third paragraphs of answer. The second paragraph of reply admits that the appellee has not been in actual possession under said lease, but alleges that at the time it so executed the same appellee, through its duly authorized agent, undertook and agreed to collect from the tenant then in possession the rent due from such tenant to the appellant up to June 1, 1907, and to remit the same to appellant; that the agent of appellee did collect said rent from the occupying tenant, for and on behalf of the appellee, and also collected rent due the appellee for the use and occupancy of said premises after June 1, 1907; that appellee then and there said rent so collected, which in law constigave to said occupying tenant a receipt for tuted said occupant a tenant for one year from said time, at the same monthly rental as he had theretofore paid appellant, to wit, $16 per month; that said receipt was so giv