width of about three or four feet at the time of the accident. The defect in the sidewalk had existed for five or six years. For a number of years prior to the date of ap pellee's injury she had passed over this sidewalk, and over the defect in it, two or three times a week. She was familiar with the street, and knew of the defect. On the afternoon of November 27, 1899, appellee had left her home, and passed over and along Williams street, to the business portion of the city. She visited a store, made some purchases, and at 5 o'clock started home. She passed down Main street, and when she reached Williams street she crossed to the north side, for the reason that the sidewalk on the south side, where she lived, was badly out of repair. By the time she reached the defect in the sidewalk where the injury occurred it was so dark she could not see it nor the loose brick therein. She was alone, and her evidence of the manner in which she was injured is the only evidence upon that point, for no one saw the accident. There were no street lights burning at or near that point. In her account of the accident she testified that she was walking carefully; that in passing over the defects in the pavement she stumbled on the bricks and fell. On cross-examination she testified that the defect in the sidewalk had been there for five or six years; that she saw it every time she passed over it, and that she never paid any attention to it. She was asked and answered the following questions: "When you were going out there that evening to go home, did you look for it?" She answered: "I wasn't thinking about it; I was just going along,-going home. It was dark." "Did you look or didn't you look?" to which she answered: "I didn't look for it, because I wasn't expecting it." It is not contended that appellant was not negligent in permitting the sidewalk to be and remain in the condition it was for so long a period, but it is urged that appellee is not entitled to recover, because her own evidence shows that she was guilty of negligence contributing to her injury. It is conceded by the appellant that the judgment must stand unless the record shows that appellee is not entitled to recover on account of her own negligence. Under the act of February 17, 1899, it was not necessary for appellee to allege or prove that she was free from negligence; for that act makes contributory negligence a matter of defense in actions of this character, and places the onus of proving such contributory negligence upon the defendant. Section 359a, Burns' Rev. St. 1901.

Appellant did not introduce any evidence to prove that appellee was guilty of contributory negligence, yet it does not necessarily follow that the record fails to show such negligence. If the plaintiff's own evidence establishes such a state of facts that there is but one conclusion to be deduced therefrom, then it is a question of law for the

court to say whether or not she was guilty of contributory negligence. To state the proposition in plainer terms, if the plaintiff's own evidence shows that she was guilty of contributory negligence that is sufficient to preclude a recovery. In this case, therefore, we must decide the question solely upon the evidence of the appellee.

The initial proposition in the case is that she knew of the defect, and had known of it for many years. She had passed over it many times. She is therefore chargeable with notice. The fact that the sidewalk was out of repair was no reason why appellee was bound to forego traveling upon it. Town of Gosport v. Evans, 112 Ind. 133, 13 N. E. 256, 2 Am. St. Rep. 164. She had a right to use the street, but with a knowledge of the defect she was required to use care commensurate with the known danger. The appellee stated that she was walking "carefully," but that is not sufficient to establish that she was acting with ordinary care for her own safety. Town of Boswell v. Wakley, 149 Ind. 64, 48 N. E. 637.

She also testified that, while she knew the defect was in the sidewalk, she never paid any attention to it; that she did not look for it; that she was not thinking about it; and that she was just going along home. These facts show that she was not exercising due care for her own safety. There was a perfectly safe way next to the property line for foot passengers to travel, for it is shown that for a space of about three or four feet the bricks in the sidewalk were in their proper place and level. This is ample space for a foot passenger, so the evidence here discloses a condition very similar to the case of Town of Gospert v. Evans, supra. There is, however, this difference: The appellee in that case knew of the defect in the sidewalk, knew she was passing over it, and was trying to avoid danger. She testified that she knew of the defect and could see it, but thought she could pass it in safety.

She knew that on the sidewalk immediately opposite the defect, next to the fence. there was ample space for her to pass. She was walking side by side with another woman, with locked arms, and the latter was walking next to the fence, opposite the defect, while passing it. Judge Mitchell, speak ing for the court, said: "Thus it appears that a person of mature years, and in the possession of all her faculties, deliberately walked into a place which, upon her hypothesis of the case, was one of known danger, and which she could have avoided by simply disengaging herself and following in the footsteps of her friend." In the same case it was further said: "One who knows of a dangerous obstruction in a street or sidewalk, and yet attempts to pass it, when, on account of darkness or other hindering causes. he cannot see so as to avoid it, takes the risk upon himself. For a much greater reason does he take the risk upon himself if,

seeing an obstruction and knowing its dangerous character, he deliberately goes into or upon it when he was under no compulsion to go, or might have avoided it by going around." The conclusion reached in that case was that the plaintiff, having full knowledge of the defect, was guilty of contributory negligence in venturing upon it, "no difference how carefully she may have prepared for the encounter, nor with how much care she went upon it." The case of Town of Boswell v. Wakley, supra, is also in point. In the case now before us it is clearly shown by the evidence of the appellee that she did not use her knowledge of the defective or unsafe condition of the sidewalk to avoid injury to herself. Under the rule declared in the Wakley Case, supra, this omission on the part of the appellee must be held to be such negligence as will preclude her recovery. See, also, Rogers v. City of Bloomington, 22 Ind. App. 601, 52 N. E. 242; Beach, Mun. Corp. § 154; Beach, Neg. § 248. Upon the uncontradicted evidence of the appellee the facts are undisputed, and such facts lead to but one conclusion. In such case it is the duty of the court to declare as a question of law whether there was or was not negligence. This rule is so familiar in this state that the citation of authorities is unnecessary. The facts so clearly disclose that appellee was negligent that we must so adjudge.

Judgment reversed, and the trial court is directed to sustain appellant's motion for a new trial.

(28 Ind. App. 692)

SMALLWOOD ▼. BEDFORD QUARRIES CO.

(Appellate Court of Indiana, Division No. 2. April 29, 1902.)

MASTER AND SERVANT-INJURIES-FELLOW

SERVANTS-ASSUMED RISK.

1. Plaintiff was engaged in a quarry, in loading stone in a dump car, and running it to where it was dumped; two other servants assisting in the dumping. One of such servants, under the direction of the other, had placed a large stone beside the track in such manner that, while plaintiff was assisting in pushing the car, it fell on him and injured him. Plaintiff was subject to the orders of the servant who directed the placing of the stone. Held, that the servants whose negligence caused the injury were fellow servants with plaintiff.

2. The danger was an ordinary risk of plaintiff's service, and was assumed by him.

Appeal from circuit court, Lawrence county; Newton Crooke, Special Judge.

Action by Frank Smallwood against the Bedford Quarries Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Jno. R. East, R. H. East, and McHenry Owen, for appellant. F. M. Trissal and Brooks & Brooks, for appellee.

COMSTOCK, C. J. Action for damages on account of personal injuries received by appellant. The complaint is in two paragraphs. The first charges that appellant was in the employ of appellee, and was ordered by its foreman, one Fred Bowen, to assist in pushing a dump car along and over a track in appellee's quarry; that the defendant had carelessly and negligently placed a heavy stone, three feet long, two feet wide, and eight inches thick, on a bank of broken stone near said track, and in close proximity to a passing dump car; that the stone had been placed on a pivot, and was liable to fall over toward said car, and on the employés pushing the same, which was known to appellee, but not known to appellant; that ap pellant had at the date of his injuries but little experience in working in quarries,-especially appellee's quarry; that appellant's view of said heavy stone was obstructed by the car; that he obeyed the order given him by said foreman, Frank Bowen, placed his hands against the car, and, with employés, and without being able to see how the said stone had been placed, and that the same was liable to fall and injure him, he assisted in pushing said car, and, when reaching a point opposite the stone, it suddenly fell against his leg, and caused the injuries set out in the complaint. The second paragraph charges the same facts, and, in addition, that the appellee negligently allowed the stone which fell and caused plaintiff's injuries to remain on the bank for a space of one hour, in the dangerous manner described in the first paragraph, and also charges that appellee's foreman had ample time and opportunity to know of the dangerous condition of said stone; that he had passed near it, and, by a reasonable inspection, could have known that the place at and near said stone was dangerous and unsafe for appellee's employés to work at and about; that appellant did not know of the danger, or of the liability of the stone to fall; that his view was obstructed by the car; and that he was injured as described in the first paragraph of the complaint. In each paragraph it is also alleged that appellee was a corporation engaged in quarrying and shipping stone, employing a great number of servants; that appellant was 19 years old, and was employed to work upon the derrick in said quarry, to assist at the wheel and base thereof; to assist in moving the dump car, when loaded, to a point where it was unloaded, when directed so to do by the foreman or others in charge of said derrick. The cause was put at issue by denial. The jury returned a verdict in favor of appellant for $1,000, and with the verdict returned answers to interrogatories, upon which, upon motion, the court rendered judgment in favor of appellee notwithstanding the general verdict. This action of the court is assigned as error. The second specification of error is the re

fusal of the court to render judgment in favor of appellant upon the general verdict.

In answer to interrogatories, the jury found that Frank Bowen and William Brazzell put the stone in the place from which it fell not more than five minutes before plaintiff was injured. At the time of his injury, plaintiff was one of a gang of three men engaged in loading waste stone on the dump car, and then running the car to the dump and there unloading it. Said three men assisted in loading, and Bowen and Brazzell dumped, said stone. When his fellow laborers put the stone in the place from which it fell, he did not see its position, and the conditions surrounding it. When the plaintiff's fellow laborers put the stone at said place, the plaintiff, before he was injured, possibly, if given time, and he had looked, could have seen the position and conditions surrounding the stone. Immediately before it injured him, he was standing by the side of said stone. It was in full view of the plaintiff, and plain to be seen, had he looked, if given a reasonable opportunity to investigate. Frank Bowen worked at the derrick; assisted in loading the car and in unloading it with the other workmen. Immediately before the stone fell, Bowen and Brazzell and plaintiff were pushing the car. When the three men were pushing the car, at the time the stone fell, it was partly leaning on the corner of the car. The pushing of the car away from the stone caused it to fall. Plaintiff had worked around quarries, and had been familiar with the work in quarries, for several years. The fact that plaintiff was hastily obeying orders prevented him from seeing the stone and its situation before pushing the car. The stone fell when the car had been pushed from six inches to one foot. Plaintiff took his position to push the car without looking, and without seeing that the place where he was standing was dangerous. Plaintiff had been engaged for three weeks before his injury at the same place, at the same kind of work. Frank Bowen was in charge of the derrick and the hauling of the stone at the time of plaintiff's injury. William Brazzell dumped the stone which injured plaintiff, while Frank Bowen was giving directions. Frank Bowen was the only agent or foreman in charge of the derrick or work where the plaintiff was injured on the day of his injuries. The said stone which injured plaintiff was placed on its edge against a T rail, and across the ties, for chocking, a short time before plaintiff's injury. Plaintiff at the time of his injury was bound to obey the orders of Fred Bowen. William Braz/ zell pulled the link which dumped the stone while Frank Bowen was standing by and giving directions to him as to the work.

We need cite no authorities to the effect that every presumption is indulged in favor of the general verdict, or that, if there is an irreconcilable conflict between the general verdict and the answers to interroga

tories, the latter must control. It is conceded by appellant's counsel that this action was at common law, and not under the statute relating to the liability of corporations for personal injuries to employés. It must therefore be determined upon that the ory. The general verdict finds, with other essential facts, that the injury for which compensation is sought was occasioned by the negligence of appellee, and that said negligence was not the act of a fellow servant. If it appears that the negligence charged was that of a fellow servant, appellant ought not to recover. No attempt has been made to make the evidence a part of the record. Do the facts specially found show that Bowen, by whose direction the particular stone was placed dangerously near the track along which the dump car was pushed, was a fellow servant or principal? "The rule in this state, now fairly settled, is that a difference in rank or power to control and direct, or to discharge from service, is not the test as to whether one is a fellow servant or vice principal. The controlling inquiry must be as to whether the act involved a duty owing by the master to the injured servant." Robertson v. Railroad Co., 146 Ind. 486, 45 N. E. 655. This court, in Peirce v. Oliver, 18 Ind. App. 87, 47 N. E. 485, has said: "It is now well settled that the decisive test whether, in a given case, an employé is to be regarded as a principal or fellow servant, is not his title or rank, or power to employ or discharge, but the nature of the services he performs." Telegraph Co. v. Bower, 20 Ind. App. 32, 49 N. E. 182; Perigo v. Brewing Co., 21 Ind. App. 338, 52 N. E. 462; Justice v. Pennsylvania Co., 130 Ind. 321, 30 N. E. 303; Peirce v. Oliver, 18 Ind. App. 87, 47 N. E. 485; Coal Co. v. Patterson, 14 Ind. App. 634, 43 N. E 270; Id., 136 Ind. 398, 35 N. E. 7, 43 Am. St. Rep. 327; Railway Co. v. Isom, 10 Ind. App. 691, 38 N. E. 423. "The master is not liable to the servant for injuries resulting from the negligence of a fellow servant engaged in the same general line of duty where the negligent act is performed in the capacity of a servant. Servants employed in the same general line of duty are fellow servants, although one may be a superior, and the other may be a subordinate servant under his immediate direction and control." Car Co. v. Parker, 100 Ind. 185, 186, and cases cited. The facts found show that Bowen had charge of the derrick, and directed and assisted in the locating of the stone which fell upon appellant, and in the loading and the removal of the broken stone by the dump car. The taking of the stone on the car to the dump, and dumping it, was but a part of the work to be done at the quarry, in the business in which appellant was employed. In the performance of this work, Bowen and Brazzell were, in common with appellant, engaged in a duty to the master. Appellant, Bowen, and Brazzell were engaged

in the removal of broken stone. If the track was dangerous, it was made so by them. It was the result of their common labor. Such risk, appellant, in common with his fellow workmen, assumed. Ross v. Lime Co., 25 Ind. App. 463, 58 N. E. 500.

In the light of the authorities and the facts found, appellant's injury was due to the negligence of a fellow servant. It is apparent too, that the danger he incurred was assumed as an ordinary risk of the service. The facts specially found cannot be reconciled with the general verdict. Counsel for appellee earnestly insist that the facts found show, also, that the appellant was guilty of contributory negligence. This question need not be determined.

Judgment affirmed.

(29 Ind. App. 74)

BOYD et al. v. SCHOTT et al. (Appellate Court of Indiana, Division No. 1. May 2, 1902.)

REFORMATION OF RELEASE-SPECIAL FINDINGS CONFLICT WITH GENERAL VERDICT-EFFECT.

Special findings, in answer to interrogatories, that a release of the south half of a quarter section of land, "except twenty acres in the southeast corner thereof," had been read three times in presence of the releasee; that he went with the releasor to have the release recorded; that the recorder entered upon the margin of the original lease a release thereof, "except ten acres around each of two oil wells"; and that, after the same was read to them, releasee stated that he was satisfied with it, are not irreconcilable with a general finding that the releasee was entitled to a reformation of the release, there being no special findings upon the issue of his right to reformation.

Appeal from circuit court, Wells county; J. W. Headington, Judge.

Action by Absalom W. Boyd and others against Peter Schott and others to quiet title to a gas and oil lease, and to recover possession of leased premises. From a judgment for defendants, plaintiffs appeal. Affirmed.

Dailey, Simmons & Dailey, for appellants. Martin & Eichhorn, for appellees.

HENLEY, J. Appellants commenced this action against appellees by complaint in two paragraphs. The first paragraph seeks to quiet the title of appellants in and to a certain gas and oil lease; the second seeks to recover possession of the leased premises from appellees. Appellee Peter Schott filed a cross complaint to quiet his alleged title to the N. 2 of the east 20 acres of the S. 2 of the S. E. 4 of section 19, in township 25 N., range 13 E., in Wells county, Ind., which description includes a portion of the lands embraced in the plaintiff's complaint, and encircles an oil well that is also in controversy between the appellants and appellees. He afterwards filed a second paragraph of cross

complaint, asking that a written release therein set out be reformed, and that his title to all of the S. 2 of the S. E. 4 of section 19, township 25 N., range 13 E., in Wells county, Ind., except the south 20 acres of the east 40 of said tract, be quieted against appellants. Upon a trial of the issues the jury returned a verdict for appellees, and that Peter Schott was entitled to a reformation of the written release set out in his cross complaint, and to have his title quieted to the land described in his said cross complaint. The court rendered judgment accordingly. With the general verdict the jury found facts by way of answers to interrogatories, and it is insisted by counsel for appellants that the facts so found are wholly irreconcilable with the general verdict. The facts so found are substantially as follows: The jury in their answer to interrogatories find that on September 20, 1892, Peter Schott owned 80 acres of real estate, in Wells county, Ind., which included the premises in controversy; that on said day he executed to appellant Boyd an oil and gas lease covering the entire 80-acre tract, which was recorded in the recorder's office of said county; that on the 10th day of August, 1893, said Boyd assigned and transferred to said co-appellants, Walker, Melvin, and Davis, an undivided three-fourths interest in his lease, which was acknowledged and entered of record in the recorder's office of Wells county; that the plaintiff, by virtue of said lease and assignment, took actual possession of the real estate described in the lease for the purpose of drilling and constructing wells for the production of oil and gas; that they constructed and completed well No. 1 on the real estate described in the lease, on the 6th day of March, 1893; that on or about the last day of October, 1893, they constructed and completed well No. 2 on said real estate, and in November, 1894, they constructed and completed well No. 3 thereon; that they furnished and equipped wells numbered 1, 2, and 3 for the production of oil; that each of said wells produced oil for the market; that, after the completion of well No. 1, plaintiffs and defendant Peter Schott signed a division order directing the pipe line company to deliver to said Schott the one-sixth of the oil produced from the wells constructed on said lease, and to plaintiffs the remaining five-sixths thereof; that said Schott has received his onesixth of the production of said wells numbered 1 and 2 ever since they were completed and equipped; that well No. 1 was constructed at a point 37 8/100 rods north, and 126/10 rods west, of the southeast corner of the S. 11⁄2 of the S. E. 4 of section 19, in township 25 N., range 13 E., in Wells county, Ind.; that well No. 2 was constructed at a point 53 6/10 rods west, and 18 68/100 rods north, of the southeast corner of said tract; that wells numbered 1 and 2 are now producing oil for the market, and Peter Schott is now receiving his one-sixth part thereof;

that said wells have been operated and pumped ever since they were constructed, and plaintiffs are still operating and pumping the same; that plaintiff Boyd, on the 11th day of May, 1895, for himself and his coplaintiffs, executed and delivered to defendant Peter Schott a release of said oil and gas lease from said Schott to said Boyd for all the real estate described therein, except 20 acres in the southeast corner thereof; that said Schott, as a consideration for said release and for the purchase of oil well No. 3, paid to said Boyd, for plaintiffs, $140 in cash, and executed his note to them for $300, which he afterwards paid; that said Boyd read said release twice in the presence and hearing of Peter Schott and John Schott, on the 11th day of May, 1895, before it was delivered to Peter Schott; that John Schott also read it over in the presence of Peter Schott and Boyd, before it was accepted; that Peter Schott at the time heard plaintiff Boyd read the clause, "and we, the said firm, also hereby release to the said Peter Schott all of the above-described tract, except twenty acres in the southeast corner of said tract, on which is located oil wells numbered one and two"; that said Boyd and Peter Schott, on the 11th day of May, or shortly thereafter, agreed and arranged that at some time in the future they would go to Bluffton, and place a release on the records where said lease was recorded; that plaintiff Boyd, on the 16th of May, 1895, at the request of Peter Schott, and in accordance with said agreement and in company with the latter, went to the recorder's office for the purpose of entering said release of record; that Jessie Martz, the deputy recorder of Wells county, at the request of said Boyd, and in the presence of Peter Schott, entered on the margin of the record where said lease was recorded a release thereof, except 10 acres around each of two wells, numbered 1 and 2, then situated on the real estate described in the lease; that said Martz, after the release was written on the margin of the record, read the same to said Boyd and Schott; that after the release had been read over to said Schott he stated to Jessie Martz and said Boyd that he was satisfied with the release as written; that Boyd then signed the same in the presence of said Schott, and Miss Martz wrote thereon, "Attest: W. F. Guoynes"; that the release so written was in the words and figures: "May 16, 1895. This lease is hereby released by consent of all parties concerned, except ten (10) acres around each of two wells now drilled on said premises;" that plaintiffs owned said wells numbered 1 and 2 at the time of the execution of the release, on the 16th of May, 1895; that defendants Peter Schott and John Schott, about the 4th day of October, 1895, constructed and completed a well on the S. 1⁄2 of the S. E. 4 of section 19, in township 25 N., range 13 E., in Wells county;

The above diagram represents the S. of the S. E. 4 of section 19, township 25 N., range 13 E., in Wells county, Ind. The 10-acre tracts surrounding wells numbered 1 and 2 would cover the S. 1⁄2 of the east 40-acre tract, and would correspond with the tract which appellees contend was the tract reserved by appellants in the release of May 11, 1895, and which tract was, by mutual mistake of the parties, erroneously descr. ed.

Appellants' contention is that the release and reservation, as written upon the margin of the record where the lease was recorded, is controlling, and that the reserved tracts, under this reservation, would necessarily be laid out as the following diagram shows: