Volume 35 — Indiana Appellate Court Reports

<p>From DeKalb Circuit Court; W. M. Brown, Special Judge.</p> <p>Action by Sarah Jackman against the Farmers Mutual Fire Insurance Company of DeKalb County. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by Maria L. Fell and another against William IT. West as treasurer of Laivrence county. From a decree for defendant, plaintiffs appeal.</p>

<p>1. Master and Servant. — Factory Act. — To Whom Applies.- — The factory act applies to a railroad company which maintains a repair shop used exclusively for its own repairs, and for the manufacture of materials for its exclusive use. p. 36.</p> <p>2. Words and Phrases. — “Or.”—Factory Act. — The word “or” in section eighteen of the factory act (Acts 1899, p. 231, §7087r Burns 1901) reading “where goods, wares or merchandise are manufactured or offered for sale” is used in its disjunctive sense and the clause means either where such goods, etc., are manufactured or where offered for sale. p. 38.</p> <p>3. Master and Servant.' — Factory Act. — Guarding Machinery. — ■ Failure to guard machinery, as provided by the factory act, is negligence per se, and guards once put on may not be removed except to make repairs, p. 38.</p> <p>4. Same. — Factory Act. — Dangerous Machinery. — Failure to Guard.— Contributory Negligence. — It does not constitute contributory negligence as a matter of law for' a servant to operate an unguarded machine, although such machine could properly be guarded, p. 38.</p> <p>5. Same. — Factory Act.- — Unguarded Machinery. — Justification.—The fact that it was necessary for the employer to make frequent changes of machinery, which, if guards had to be replaced at each time, would entail upon such employer great loss of time and money may be considered by the jury on the question as to whether it was practicable to guard the saw on which plaintiff was injured, p. 39.</p> <p>6. Trial. — Instructions. — Damages. — Elements. — An instruction, which calls the attention of the jury to all of the elements of damage in a case, and concluding that the amount should not exceed the amount named in the complaint, is correct, p. 40.</p> <p>7. Master and Servant. — Factory Act. — Machinery.—Duty to Guard. — It is the duty of the employer, under the factory act, to guard dangerous machinery, and the fact that he provides the guards for the servants, without placing them, does not relieve him. p. 43.</p> <p>8. Same. — Factory Act. — Contributory Negligence. — Defense.—Contributory negligence is a defense to an action for the violation of the factory act. p. 44.</p> <p>9. Same. — Negligence.—Degree of Care Required of Servant. — The failure of the servant to do the best thing under the circumstances is not the test of negligence, ordinary care under the circumstances being the proper requirement, p. 44.</p> <p>10. New Trial. — Verdict not Supported by Evidence. — Where, in an action by a servant against his master for damages for personal injuries, the evidence shows that such servant - was working at an unguarded saw used as a part of the defendant railroad company’s repair shops; that it was practicable to guard such saw; that such servant was injured by said saw so that his arm had to be amputated, and that he was not guilty of contributory negligence, a verdict for plaintiff can not be set aside, p. 44.</p>

<p>1. Contracts. — Assignability.—Special Finding. — Where a glass company agreed in writing to erect and operate a factory of a certain capacity for an indefinite time in consideration that a land company would donate to it certain lots and furnish it natural gas free so long as obtainable, and construct a railroad switch to its factory, and when the factory was completed the parties entered into a supplemental contract in writing providing therein that the first contract should not bo changed thereby, and also providing that such “con-H tracts are not transferable,” and there was oral evidence to show that the first contract was preliminary and that it was orally agreed that it should not be assignable, a finding that such contracts were not assignable will not be disturbed, p. 50.</p> <p>2. Contkacts. — Assignability.—Receiver's Sale. — Where a contract is not assignable, a purchaser of such contract rights at a receiver’s sale gets nothing, p. 53.</p> <p>3. Same. — Assignability.—Where a contract is by its terms silent as to its being assignable, and it imposes upon each party a continuing obligation in favor of the other, and the character of the assignor and his ability to be of assistance to the other party was an inducement in the execution of the contract, such contract is not assignable, p. 53.</p>

<p>Erom Clinton Circuit Court; Joseph Claybaugh, Judge.</p> <p>Action by Andrew Earhart against the Terre Haute & Logansport Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Railroads. — Person Near Track. — Whether Licensee. — Where a night watchman, after signaling a railroad train to stop, goes across the track and notifies the guests at a hotel that the train is approaching, and then returns and stands at a point six feet from the track, on a pavement which has been used by the public for several years, and which was not in the exclusive use of the railroad company, he is not a licensee, but is there by lawful right, p. 01.</p> <p>2. Pleading. — Railroads.—Injury to Person Near Track. — Failure to Give Signals. — Where the complaint shows that the defendant’s train ran through a town at a high rate of speed, without any headlight, and giving no signals, but shows that plaintiff’s injuries were not inflicted, by reason of such negligence, such allegations add nothing to the complaint, p. 62.</p> <p>3. Railroads. — Injury to Person Near Track. — Where a railroad company carried on its train an object which protruded laterally from such train, and in passing through a town at night such object struck and injured the plaintiff, who' was standing six feet from defendant’s track on a sidewalk used by the public in passing near defendant’s station, the defendant is' liable, p. 62.</p> <p>4. Trial. — Instruction.—Negligence.—Wilful Injury. — Where there is no allegation of wilful injury in the complaint, it is harmful error for the court to instruct, that if the plaintiff was a wrongdoer or trespasser he could not recover except on proof that his injuries were wilfully inflicted or were so recklessly inflicted as to warrant the inference of wilfulness. p. 62.</p> <p>5. Same.— Instruction.— Damages.— Interrogatories. — An instruction in a suit for damages for personal injuries which refers the amount of damages to the jury without any express reference to what they might find from the evidence, can not be said to be harmless, even though the answers to the interrogatories show that the general verdict was based upon the particular negligence shown in the complaint, p. 64.</p>

<p>Erom Perry Circuit Court; C. W. Coolc, Special .Judge.</p> <p>Action by the American Cannel Coal Company against Emma L. Clark. Erom a decree for plaintiff, defendant appeals.</p>

<p>Erom Eloyd Circuit Court; Perry P. Bear, Special J udge.</p> <p>Action by Delia L. Carter against George A. Carter and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p>1. Master and Servant. — Negligence.—Factory Act. — The master is liable for the negligence of his superintendent, to whose orders the plaintiff employe was bound to conform, and did so. p. 81.</p> <p>2. Pleading. — Tort.—Joint Defendants. — One Talcing Advantage of Error Against the Other. — One joint defendant can not take advantage of an error in overruling a demurrer to a complaint against both defendants, when the complaint is sufficient as to such complaining defendant, p. 81.</p> <p>3. Same. — Complaint.—Injury to Servant. — Common Laio. — Safe Place. — In an action by the servant against his master for failure to provide a safe place wherein to work, it is necessary at common law to allege that such master knew of the defect and that the servant did not know thereof, and these must be shown affirmatively, and an averment of the servant’s “belief” of no defect is not equivalent to an averment of want of notice of such defect, p. 83.</p> <p>4. Appeal and Error. — Exceptions.—Joint or Several. — Where defendants jointly and separately demur to the plaintiff’s first and second paragraphs of complaint and such demurrer is overruled, “to each of which rulings of the court the defendants at the time except,” such exception is several, p. 83.</p>

<p>1. Fraudulent Conveyances. — Husband to Wife. — Preference.— Stale Debt. — The husband has a right to prefer creditors on insolvency, and may prefer his wife when it is done honestly in the payment of a just debt. p. 85.</p> <p>2. Appeal and Error. — Evidence.—Although the evidence may appear improbable on appeal, yet if it is conflicting, the trial court’s finding will not be disturbed, such court being in a superior position to judge of the credibility of the witnesses, p. 85.</p>

<p>1. Pleading. — Complaint.—Paragraphs of. — Each paragraph of a complaint must be sufficient within itself, p. 87.</p> <p>2. Same. — Complaint.—Street Improvement Lien. — Foreclosure.—A complaint for the foreclosure of a street improvement lien, which fails to state that such improvement was based upon the petition of the owners of two-thirds of the whole line of lots, or that such improvement was ordered with the concurrence of two-thirds • of the board of trustees of the town, or that any notice of the filing of the engineer’s report, or any other notice, was given to the property owners, is not sufficient on demurrer, p. 87.</p> <p>3. Municipal Corporations.' — Street Improvements. — Notice.—Collateral Attach. — An assessment made for a street improvement is void and may be collaterally attacked where the lot owners were given no notice of the proposal for making the improvement, or of the filing of the engineer’s report, or of the time and place for the hearing of grievances, p. 88.</p> <p>4. Same. — Street Improvements. — Assessments.—Notice.—Statutes.—■ An assessment for a street improvement, where the only notice given was for bids for the making of such improvement, is void, since such notice does not provide such owners an. opportunity to be heard. p. 88.</p> <p>5. Judgment. — Resting on Complaint m Three Paragraphs. — Fffect of Bad Paragraphs. — A judgment resting on a complaint in three paragraphs, one good and two bad, can not be upheld where it does not affirmatively appear that the judgment rests upon the good paragraph. p. 89.</p>

<p>From Madison Circuit Court; John F. McGlure> .Judge.</p> <p>Action by Maria Hockett against the Eeserve Loan Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

From Jennings Circuit Court; William Fitzgerald, Special Judge. Application by Warren A. Smith for license to retail intoxicating liquors, against which Charles Ardery and others remonstrate. From a judgment of the circuit court granting the license, remonstrants appeal.

Erom. Huntington Circuit Court; James O. Branyan, Judge. Application by Harvey Gill for license to-retail intoxicating liquors, against which Calvin Pferdue remonstrates. Erom a judgment of the circuit court granting a license, remonstrant appeals.

<p>1. Evidence. — Title.—Tax Deeds. — Description.—A tax deed, properly executed, is prima facie evidence of the regularity of a tax sale and of a fee-simple title in the grantee, but such evidence is not sufficient to establish title where the description in such deed fails to describe the land with reasonable certainty, p. 110.</p> <p>2. Same. — Tam Deeds. — Description as of Record. — The fact that the description in a tax deed is the same as had been used on the records for taxation for many years will not cure such deed when such description is in fact insufficient, p. 110. ■</p> <p>3. Deeds. — Description.-—Tarnation.—A defective description in a tax deed is fatal, p. 111.</p> <p>4. Same. — Taxes. — Certificate of Bale. — Records. - — • Description. — Where the description of land in the tax records and the certificate of sale is inadequate, a tax deed, executed pursuant to such certificate, though it contains a complete description, is void. p. 112.</p> <p>5. Taxation. — Maxims.—Applicability.—The maxim “de minimis non curat lex” does not apply to tax sales, p. 112.</p> <p>6. Same. — Tax Bales. — Excessive Amount, of Taxes. — Validity of Sale. —A sale of lands for $43 taxes is void where the correct amount of tax was $42.92, six cents being purposely added by the taxing officers and two cents being unaccounted for. p. 112.</p> <p>7. Evidence. — Tax Deed Unattested by Treasurer. — A tax deed unattested by the county treasurer is not prima facie evidence of title, p. 114.</p> <p>8. Taxation. — Tax Deeds — Execution.—Special Rinding. — The special finding, in order to support the execution of a tax deed, must show that such deed was signed, witnessed and acknowledged by the persons designated by statute, p. 115.</p> <p>O. Trial. — Special Finding. — Intendment.—A special finding must contain all of the facts. Nothing can be supplied by presumptions or intendments, p. 115.</p> <p>10. Taxation. — Tax Deed.- — Failure of Title. — Lien for Taxes. — A tax deed, void as to the conveyance oí title, carries the lien of the State for taxes, and such taxes become a lien in favor of the grantee, p. 115.</p> <p>11. Appeal and Ereoe. — Reversal.—Petition for Rehearing. — Modification of Mandate. — A reversal with instructions to render judgment for appellant will be modified where the petition for a rehearing shows that the condition of the parties has been materially changed since the trial and that such judgment would work an injustice, p. 115.</p>

<p>From Howard Superior Court; Waller W. Mount, Special Judge.</p> <p>Action by Celian Spitzer and another against Frank D. Miller and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Appeal and Eeeoe.- — Term-time.—Parties.—How Named m Assignment of Errors. — Term-time appeals, taken separately by several codefendants, in which each appellant makes his coparties below appellees, will be dismissed.</p>

<p>1. Trial. — Question of Law or Fact. — Duty of Court.- — Where the material facts of a case are not in dispute, it is the duty of the court to apply the law. p. 123. •</p> <p>2. Insurance.— Mutual Benefit.— Local Treasurer.— Agency.— The local officer who collects the dues from the members of a local lodge and transmits such dues to the grand lodge is the agent of such grand lodge, p. 125.</p> <p>3. Same. — Mutual Benefit. — Payment of Assessment After Default.— Estoppel. — Agency.—The fact that the collector of dues of a local lodge has collected and remitted assessments after the day of default does not necessarily estop the grand lodge from declaring a forfeiture for subsequent defaults, since an agent can not bind his principal by his unauthorized acts. p. 126.</p> <p>4. Same. — Mutual Benefit. — Nature of. — Mutual benefit or fraternal insurance ordinarily lasts only from the maturity of one assessment to the maturity of another, and stipulations to insure prompt payment are of the substance and essence of such contracts, p. 129.</p> <p>5. Same. — Mutual Benefit. — Duties and Obligations. — The obligations of the beneficial association and of its individual members are reciprocal, and both must comply with the constitution and laws of such association, p. 130.</p> <p>6. Same. — Mutual Benefit. — By-Laws. —• Assessments. ■— Failure to Pay. — Where the by-laws of a beneficial association provide that “a member failing to pay any assessment required by law, shall stand suspended, and shall not thereafter be entitled to the benefit of the widow and orphans’ benefit fund” unless reinstated, a member failing to pay an assessment due and payable March 1, is not in “good standing” on March 10. p. 130.</p> <p>7. Agency. — Death of Principal. — Revocation.—The death of the principal revokes the authority of his agent, p. 131.</p> <p>8. Insubance. — Mutual Benefit. — Assessments. — Payment After Death. — Payment of an assessment after the death of assured by the beneficiary will not revive a forfeited contract of beneficial insurance. p. 131.</p> <p>9. New Tbial. — Insurance.—Mutual Benefit. — Evidence.—Sufficiency. —Where the evidence shows that a member of a fraternal beneficiary society failed to pay an assessment at the time fixed by the by-laws and that after such member’s death such assessment was paid to the society’s local treasurer, who returned same upon learning of such member’s death, a verdict and judgment for such member’s beneficiaries can not be sustained, p. 131.</p>

<p>From White Circuit Court; T. F. Palmer, Judge.</p> <p>Action, by Alvin Witz against Edna Helm and husband. Prom a decree for plaintiff, defendants appeal.</p>

<p>Erom Lake Superior Court; Harry B. Tutlvill, Judge.</p> <p>Action by William Hanrahan against John J. Knickerbocker. Erom a judgment for defendant, plaintiff appeals.</p>

Erom Superior Court of Madison County; Ilenry G. Hym, Judge. Action by Luther Bond against the Toledo, St. Louis & Western Railroad Company and another. From a judgment for plaintiff for $4,000, defendant railroad company appeals.

<p>1. New Trial. — Verdict Contrary to Evidence. — “That the verdict of the jury is contrary to the evidence” is no cause for a new trial, p. 155.</p> <p>2. Same. — Verdict Contrary to Law and Evidence. — “That the verdict i» contrary to the law and evidence” is no cause for a new trial, p. 155.</p> <p>3. Same. — Verdict Contrary to Law.- — A verdict improperly affected by errors of law occurring on the trial, or a verdict founded upon insufficient evidence, is “contrary to law.” p. 155.</p> <p>4. Master and Servant. — Obvious Dangers.- — Assumption of Rish.— The servant assumes the risk of all defects open to ordinary, careful observation, p. 156.</p> <p>5. Same. — Assumption of Rish. — Contract.—The assumption of the risk of obvious dangers is a part of the ordinary contract of service, p. 157.</p> <p>6. Same. — Rule of “Safe Place.” — Exception.—The rule of “safe place” does not apply in favor of a servant engaged in making a dangerous place safe. p. 157.</p> <p>7. Same. — Coal Mines. — Mahñng Miner’s Room Safe.- — The owners of a coal mine are not liable to a “jerryman,” employed to clean up and make safe the rooms of the miners, and who was injured while taking down props and pulling down slate from the ceiling of a room, such “jerryman” knowing at the time of the dangerous conditions in such room. p. 159.</p> <p>8. Trial. — Peremptory Instruction. — When Proper. — Where the evidence wholly fails to establish the plaintiff’s cause of action, it is the duty of the trial judge to direct a verdict for defendant, p. 159.</p>

Erom • Vanderburgh' Circuit Court; Louis O. Basch, Judge. Action by Willard R. Roberts against L. N. Dibble, doing business under the firm name of Dibble & Warner. Erom a judgment for plaintiff, defendant appeals.

From Vanderburgh. Circuit Court; Louis O. Bosch, Judge. Petition by Joseph Carithers and others for the establishment of a highway, against which Joshua S. Sisson and others remonstrate. From a judgment for petitioners, remonstrants appeal.

Erom Crawford Circuit Court; G. W. Goolc, Judge. Application by Joseph W. Meloy for license to retail intoxicating liquors, against which William V. Weathers? and others remonstrate. Erom a judgment for remonstrants, applicant appeals.

<p>1. Appeal and Error. — Bill of Exceptions. — Signing.—It will be presumed that the trial judge signed a bill of exceptions before filing where the record entry of March 26 shows that appellants’ bill of exceptions “in these words (H. I.) is now filed, signed by the court,” etc., even though the transcript sets out such bill before it shows the signing, where the record shows that the reporter’s longhand manuscript of the evidence was filed February 12 and the bill was presented to the judge February 19. p. 169.</p> <p>2. Trial. — Evidence.—Erroneous Admission.- — When Reversible. — The erroneous admission of evidence is not reversible error when, from the whole evidence, it appears that the general result was not thereby changed, p. 170.</p> <p>3. Appeal and Error. — Judgment of Trial Oourt. — Presumption.— The appellant must afiirmatively show error by the record, every presumption being indulged in favor of the decision of the trial court, p. 170.</p> <p>4. Same. — Evidence.—Objections.-—Only the objections to the admission of evidence urged in the trial court will be considered on appeal, p. 171.</p> <p>5. Evidence. — Objection. — Highways. — Damages. — Evidence in a highway condemnation proceeding that witness was offered a certain sum “if the public road was through there,” is inadmissible on direct examination, and the objection that such evidence is “hearsay” is sufficient. p. 171.</p> <p>6. Same. — Highioays. — Damages. — The question whether remonstrant’s land would be enhanced in value by the establishment of a proposed highway, and the answer that it would, are both improper on direct examination. , p. 172.</p> <p>7. Highways. — Damages.—Measure of. — The difference in the value of the land with and without a proposed highway is the proper measure of damages in highway condemnation proceedings, p. 172.</p> <p>8. Same. — Damages.—Benefits.—How Ascertained. — No damages can be recovered by a remonstrant in a highway condemnation proceeding where the benefits to his land are as much as his damages, p. 173.</p> <p>9. Evidence. — Incompetent.-—Whether Admission of, Permits Rebuttal by. — The admission of incompetent evidence of a matter outside of the issues, without objection, does not permit an adversary, over objection, to combat such evidence by other incompetent evidence. , p. 173.</p> <p>10. Same. — Incompetent.—Whether Admission of, Permits Rebuttal by. — The admission of incompetent evidence of a matter within the issues, without objection, permits an opponent, over objection, to introduce incompetent evidence of such matter, p. 173.</p> <p>11. Appeal and Error. — Trial.—Instructions.—Clerical Error. — The use of the word “defendants” instead of “plaintiffs” will not preclude appellants from a hearing on the merits on appeal where the mistake is clerical, even though the presumption is that the record is true, p. 173.</p> <p>12. Trial. — Instructions.—Highways.—Damages.—It is improper, in an instruction on the question of damages to lands on account of a proposed highway, to include in such instruction facts going to the public utility of such highway, p. 174.</p> <p>13. Highways. — Damages.—What Lands Considered. — Only the specific body of real estate over which a proposed highway will pass can be considered in estimating a remonstrant’s damages. Other separate lands of remonstrant can not be considered, p. 175.</p> <p>14. Trial. — Instructions.-—Duty of Judge Where Two Issues. — It is the duty of the judge to instruct separately on the issues in a case and confine the facts in an instruction to the issue concerned in such instruction, p. 175.</p>

<p>From Boone Circuit Court; Samuel B. Artman, Judge.</p> <p>Action by Joseph Collier and another against Bert Miller. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Appeal and Ekrob. — Several Assignments. — Joint Exceptions.- — A several assignment of errors, where the exceptions below were joint, presents no question on appeal, p. 178.</p> <p>2. Same. — New Trial. — Evidence.—Recovery Too Large. — In the absence of the evidence and of a showing in the special findings of an excess in the amount of 'the recovery, an assignment that the court erred in overruling a motion for a new trial, because the amount of' recovery was too large, presents no question, p. 178.</p>

<p>Erom Tipton Circuit Court; J. F. Morrison, Special Judge.</p> <p>Action by James D. McCarty and others against John J. Snowbarger and others. From a decree for defendants, plaintiffs appeal.</p>

<p>Erom Vigo Circuit Court; James E. Piety, Judge.</p> <p>Action by Anna M. Kieley as administratrix of tbe estate of Albert H. Kieley, deceased, against tbe Terre Haute Electric Company. Erom a judgment for plaintiff, defendant appeals.</p>

From Porter Superior Court; Harry B. Tuthill, Judge. Action by Charles C. Smith as administrator of the estate of Cynthia Tuley, deceased, against the Michigan Central Railroad Company. From a judgment for defendant notwithstanding a general verdict for plaintiff'for $1,500, plaintiff appeals.

<p>1. Street Railroads. — The “Look and Listen” Rule. — Whether Applicable. — The “look and listen” rule, as applied to persons crossing the tracks of a railroad at a highway crossing, is not applicable to persons crossing a street car track in a city. p. 200.</p> <p>2. Appeal and Error. — Street Railroads. — Negligence.—Contributory. Jury. — The verdict of the jury that plaintiff was not guilty of contributory negligence is conclusive on appeal, where it was shown that plaintiff was driving a load of furniture along the street and without looking back attempted to cross the track, when he was injured, and where it was also shown that the motorman saw or could have seen plaintiff’s situation in time to avoid a collision, p. 207.</p> <p>3. Negligence. — Contributory.—The negligence of plaintiff is not contributory unless it is the proximate cause of the injury, p. 207.</p> <p>4. Same. — Proximate Cause. — Question of Fact. — What is the proximate cause of an injury is primarily a question of fact for the jury, p. 207.</p> <p>5. Same. — Intervention of Responsible Agent. — Effect.—The intervention of a responsible agent breaks the line of causation and renders such agent alone liable for the results, p. 208.</p> <p>6. Same. — Contributory.—Street Railroads. — A person who, without legal excuse, goes onto a street car track so close in front of a car that the motorman can not avoid a collision, is guilty of contributory negligence. p. 209.</p> <p>7. Same. — Liability of Intervening Responsible Agent. — A motorman 200 feet away, who, with full knowledge of plaintiff’s danger on a car track, runs his car against plaintiff, is a responsible intervening agent whose negligence renders his master liable, p. 209.</p> <p>8. Same.- — Anticipation of Defendant’s Negligence. — Effect on Original Wrongdoer.- — Where the intervention of an independent agent should have been foreseen, the original wrongdoer is not relieved from the consequences of his negligence, p. 210.</p> <p>9. Street Railroads. — Rights at Crossings. — A street railroad company has no greater rights at street crossings than any other user of the streets, and its use of such crossings must be exercised with due regard to the equal rights of others, p. 210.</p> <p>10. Same. — Occupancy of Track by Others. — Presumption of Collision. —It will not be presumed that a street railroad company will unnecessarily run its car against one crossing its track, p. 210,</p> <p>11. Negligence. — Proximate Cause. — Street Railroads. — The negligence of a street railroad company, which, with full knowledge of plaintiff’s dangers, and being able to avoid a collision, negligently refuses to stop its car, is the proximate cause of injuries caused by such collision, p. 211.</p> <p>12. Same. — Contributory.—Avoidance of by Defendant. — Where the injurious consequences of plaintiff’s negligence could have been avoided by the defendant by the exercise of ordinary care, such defendant is liable for the injury caused, p. 211.</p> <p>13. Street Railroads. — Running Down Persons on Track. — Liability. A street railroad company can not, without liability, run down persons on its track, p. 213.</p> <p>14. Same. — Duty to Observe Persons on Track. — Negligent Failure.— Liability. — A street railroad company is liable for its negligent failure to see persons on its track and its failure to avoid their injury, although such persons may be negligent in being upon such track. It is not necessary that it shall see such persons on such track or know that they will remain there, p. 214.</p> <p>15. Same. — Wilful Injury. — Where the charge is wilful injury by a street railroad company, it is necessary to show that such company saw plaintiff on its track and had sufficient reason to think he would remain upon the track, p. 214.</p> <p>16. Same.- — Persons on Track. — Rules Applicable. — The rules applicable to steam railroads in cases of persons on or using their tracks are not applicable to street railroads, p. 214.</p> <p>17. Same. — Persons on Track. — Duty to Observe.• — It is the duty of a street railroad company to anticipate and keep a lookout for people on its tracks, p. 215.</p>

<p>1. Evidence. — Judicial Notice. — Regulations of Postoffice Department. —Courts take judicial notice of the regulations of the postoffice department. p. 219.</p> <p>2. Notice. — Registry Return Receipt.- — A failure to receive the registry return receipt is notice that such registered letter or package has not been delivered, p. 220.</p> <p>3. Judgment. — Setting Aside. — Esocusahle Neglect. — Where a defendant, who resided in Indianapolis, was sued in the Clark Circuit Court, and she employed an Indianapolis attorney, who in turn employed one at Jeffersonville to attend to such cause, and -the Indianapolis attorney on September 17 registered an answer and cross-complaint in such cause to such Jeffersonville attorney, who had secured another attorney to look after his business in his absence during the first week of such court, but the registered letter was not delivered until September 28, and on September 22 a default judgment was taken, and such Indianapolis atorney knew of the absence of the attorney at Jefferson-ville, and did not receive the registry return receipt, and nothing was done by any one in such cause for defendant, such defendant is not entitled to relief on the ground of excusable neglect, p. 220.</p> <p>4. Same. — Setting Aside. — Neglect of Attorney. — Negligence of an attorney is negligence of the client, and such negligence is no ground for setting aside a judgment for excusable neglect, p. 220.</p> <p>5. Appeal and Ebbok. — Record.—Time of Filing Papers. — Where the record shows a decision of the trial judge as to the time of the filing of papers in a cause, such decision will not be disturbed on appeal. p. 220.</p>

<p>1. Jury. — Qualifications.—Member of Prior Jury Within One Year.— Challenge for Cause. — A juror of the regular panel, who has sat on a jury within the year preceding, other than the regular panel for the existing term, is not competent to sit over objection, and is subject to a challenge for cause by either party. City of Coshen v. England, 119 Ind. 368, distinguished, p. 222.</p> <p>2. Assault and Battery. — Public Place. — Invitation.—Right to Protection. — It is the duty of an association operating a county fair to protect its invited patrons, and for an assault and battery, by one of its employes, such association is liable, p. 224.</p>

<p>1. Pleading. — Reply.—Whether Necessary on Appeal from Justice of the Peace. — A reply to an answer is not necessary in a cause appealed from a justice of the peace, p. 225.</p> <p>2. New Trial. — Evidence.—Exclusion of. — Offer to Prove. — The exclusion of evidence presents no ground for a ney trial where no offer was made showing what such excluded evidence was. p. 226.</p> <p>3. Landlord and Tenant. — Lease.—Notice to Quit. — Where a house is leased for a definite time, notice to quit is not necessary, p. 227.</p> <p>4. Same. — Holding Over. — Measure of Damages. — The measure of damages for a tenant’s holding over unlawfully is the rental value of the property, p. 227.</p>

Erom Miami Circuit Court; Frank D. Butler, Special Judge. Action by the Cincinnati Butchers’ Supply Company against George Steinmetz. Erom a judgment for defendant on his counterclaims, and against plaintiff on its complaint, plaintiff appeals.

<p>1. Appeal and Error. — Assignment.—Waiver.—Failure to discuss an alleged error on appeal is a waiver thereof, p. 232.</p> <p>2. Amendments. — "Name of Defendant. — It is not error for the court to permit plaintiff during the trial to amend the name of defendant in the complaint, answer and summons, by striking out “Window” from the name “Wilkinson Cooperative Window Glass Company,” where if appeared that the summons was properly served, and the real defendant was in court, defending the cause, p. 232.</p> <p>3. Same. — Prejudicial.-—Where an amendment is made which does not prejudice a party, he has no right to complain, p. 233.</p> <p>4. Master and Servant. — Fellow Servants. — Who Are. — A servant using a sledge in tamping a cement floor is a 'fellow servant with the one who holds the block which is struck by such sledge in tamping, p. 236.</p> <p>5. Same. — Incompetency of Fellow Servant. — Knowledge.—-Evidence. —The statements by a servant, at the time of employment, that all he knew of using a sledge was what he learned while working on the farm, and that he never worked in a factory, are insufficient to establish the master’s knowledge of such servant’s incompetency, the presumption being that he is competent, p. 236.</p> <p>6. Same. — Employers’ Liability Act. — Negligence in Execution of Master’s Order.- — -Where two fellow servants are engaged in tamping a cement floor, and the master order's that such floor be packed harder, but gives no direction as to the manner of doing such work, and one of such servants injures the other in the method adopted, no liability exists against such master by reason of the employers’ 'liability act (§7083 Burns 1901). p. 237.</p> <p>7. Maxims. — Damnum absque injuria. — Application of. — The maxim, damnum absque imjuria, is applicable to a case of injui'y by one servant to his fellow servant, where no negligence of the master contributes to such injury, p. 237.</p>

<p>1. Wills. — Estate Devised. — Construction.-—A will, devising to testator’s widow certain lands “now owned by me, and of which I may die seized in fee simple together with my interest,” etc., gives to such widow a fee-simple title, although the punctuation would, literally, imply a different construction, such latter construction resulting, however, in partial intestacy, and especially is such former construction preferable when, as here, all other devises in such will are expressed in similar language, p. 241.</p> <p>2: Same. — Estate Devised. — Restraint on Marriage. — Where a testator devises to his widow a fee-simple title and subsequently adds: “The last-above described real estate, I so will and devise unto my j beloved wife * * * only so long as she shall be and remain my I unmarried widow if and in the event my said wife * * * shall after my death marry again then all sáid real estate so willed and devised her herein is hereby willed and devised,” etc!, such language is simply a condition against- remarriage, and construed'in connection with other parts of such will, does not cut down such fee-simple title, p. 242.</p> <p>3. Same. — Estate Devised. — Words of Limitation. — A devise to one so long as she remains testator’s widow, such language standing alone, gives to such widow an estate determinable upon her marriage, and which in no event can be greater than a life estate, p. 242.</p> <p>4. Same. — Restraint on Marriage. — Where a testator uses language in a devise to his widow capable of being construed as a restraint on marriage, the fact that he refers to such language three- times- after-wards in such will as a condition and also speaks as often of such estate as being forfeited on such widow’s remarriage, such latter language will be considered as tending to show the real meaning of the language of such devise, p. 242.</p>

<p>From Johnson Circuit Court; William A. Johnson, Special Judge.</p> <p>Action by the Greenwood Telephone Company ag’ainst Margaret Heck and Lora Heck. From a decree in favor of Lora Heck and against Margaret Heck for damages only, Margaret Heck appeals.</p>

<p>1. Appeal and Error. — Evidence.—Weight of. — The Appellate Court will not weigh conflicting evidence to determine on which side the preponderance lies. p. 248.</p> <p>2. Trial.- — Special Findings. — Motions to Alter, Strike Out, and Make Additional.- — Motions to alter, strike out or make additional special findings are not recognized by the Indiana code, and such motions may be overruled, rejected or stricken out. p. 248.</p> <p>3. Appeal and Error. — Special Findings. — Contrary to Laio. — Errors assigned, that “the facts as found by the court are contrary to law” and “the facts a§ found by the court are not supported by suflicient evidence,” present no question for review', p. 249.</p> <p>4. Trial. — Special Findings.- — Exception.—When Taken. — An exception, taken on March 12 to a special finding filed on February 23, is too late. p. 249.</p> <p>5. Appeal and Error. — Joint Assignment. — Sevei'al Exceptions. — A joint assignment of errors presents no question where the exceptions taken at the trial are several, p. 250.</p> <p>6. Judgment.- — Motion to Modify. — When Made. — A motion to modify a judgment is premature when the motion was filed on March 12 and the judgment was rendered on March 16. p. 250.</p> <p>7. Trial. — Judgment.—Special Findings. — A motion to modify a judgment on account of excessive amount of recovery should be overruled where the special findings show such judgment to be smaller than the special findings warrant, p. 251.</p>

<p>1. Covenants. — Running With the Land. — Fences.—Railroads.—A covenant by a railroad company to build fences, cattle-guards and crossings, in consideration of the grant of a right of way, runs with the land and is enforceable against such company's grantee, p. 258.</p> <p>2. Same. — Running With Land. — Who Bound. — All persons claiming title through or under a deed imposing a burden upon the land are bound thereby, p. 258.</p> <p>S. Same. — Consideration.—The grant of a right of way in consideration of the building and maintenance of fences, cattle-guards and crossings is supported by a valuable consideration, p. 258.</p> <p>4. Triax,. — Stenographer.—Refusal to Appoint. — The refusal of the court to appoint an official reporter to take the testimony in a cause is no reason for a new trial, p. 259.</p> <p>5. Covenants. — To Do One’s Duty. — Consideration.—A covenant by a railroad company to fence and ditch its right of way, and maintain fences, cattle-guards, farm crossings and an underground passage-way, in consideration of the grant of such right of way, is supported by a consideration, though some of the acts required in such covenant are imposed upon such company by law. p. 259.</p> <p>6. Limitation oe Actions. — Covenants.—Breach.—The twenty-year statute of limitations applies to an action for the breach of a covenant. p. 259.</p> <p>7. Covenants. — Running With the Land. — Breach.—Measure of Damages. — The measure of damages, where not otherwise provided, for the breach of a covenant running with the land is the amount of loss in the rental value of such land. p. 260.</p> <p>8. Same. — Breach.—Liquidated Damages. — Penalty.—Where the parties provide in a covenant thaf for a breach thereof the covenantor shall pay the covenantee $1,000 as damages, and such sum does not appear disproportionate to the loss which might be occasioned by a breach thereof, such amount will be considered as liquidated damages and not a penalty, p. 261.</p> <p>9. Damages. — Liquidated.—Covenants.-—DemaAtd for Performance.— Interest. — Where a covenantee makes a demand for the performance of a covenant, and such covenant prescribes a certain 'sum as liquidated damages in case of breach, the covenantee, in case of nonperformance, is entitled to interest on such damages from the date of such demand, p. 262.</p> <p>10. Appeal and Ekrob. — Damages.—Wrong Measure. — Right Result. —Where the trial court erroneously gave a judgment for actual damages where liquidated damages had been provided in the contract, but .the judgment was for practically the right amount, the judgment will not be reversed, p. 262.</p>

<p>1. Appeal and Error. — Refusal of Strueh Jury. — Soto Assigned.— The refusal to grant a struck jury can not be separately assigned as error, but must be included in the motion for a new trial, p. 265.</p> <p>2. Intoxicating Liquors. ■— License. — Remonstrance. — By statute (Acts 1895, p. 248, §9, §7283i Burns 1901), the number of legal voters in a ward is determined by the aggregate number of votes cast in such ward for the candidates for the highest office voted for at the last election held therein, p. 260.</p> <p>3. Statutes. — Construction. — Intent. — In construing a statute the courts will, if possible, carry out the intent, though such intent may conflict with the letter thereof, p. 266.</p> <p>4. Same. — License.-—Remonstrance.—Changing Boundaries of Ward. —Bffect.-—-The change of the boundary of a city ward does not prohibit the voters therein from remonstrating against an application for a liquor license, but the voters taken from such ward .can not be counted on a remonstrance, and they should be deducted from the vote of such ward in estimating the total number of voters, p. 266.</p>

<p>Erom Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by Hugh J. Leonard against the Cincinnati, Lawreneeburg & Aurora Electric Street Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Superior Court of Marion County (58,OOQ); Vinson Carter, Judge.</p> <p>Action by the National Bank of Commerce of Seattle against the Hoosier Construction Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>From Morgan Circuit Court; George W. Grubbs, Special Judge.</p> <p>Action fey James M. TIaverstick against the Indianapolis Street Railway Company. From a judgment for plaintiff on a verdict for $100, defendant appeals.</p>

<p>From St. .Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Daniel Marker against the City of Mishawaka and another. From a judgment for defendants, plaintiff appeals.</p>

<p>From Grant Superior Court; B. F. Harness, Judge.</p> <p>Action by tbe Marion Gas Company against the Crystal Ice and Cold Storage Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Bartholomew Circuit Court; Francis T. Eord, Judge.</p> <p>Action by Williamson T. Newsom against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Erom a judgment for plaintiff on a, verdict for $1,500, defendant appeals.</p>

<p>Erom Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by Ora L. Swales against the Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Rudolph A. Shatz against the Alexandria Gas Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Superior Court of Marion County (G4,138) ; Vinson Carter, Judge.</p> <p>Action by James O’Donnell against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Fountain Circuit Court; Will Isham, Special Judge. Complaint for a new trial by Eva C. Slusser in an action wherein Charles O. Palin as trustee of Richland Civil Township was plaintiff and Eva C. Slusser and others were defendants. From a judgment against her, she appeals.

<p>1. Insurance. — Indemnity.—“Immediate Notice.'” — When question of Law. — A condition in an indemnity policy that “immediate notice” of any claim shall be given such indemnity company by 'assured means notice within a reasonable time, and where the facts are not in dispute such question is one of law for the court, p. 345.</p> <p>2. Insurance. — Indemnity.—Notice.—Condition Precedent. — A condition in an indemnity policy that assured shall give “immediate notice” of any claim to such company is a condition precedent, and unless such “immediate notice” is given, no liability accrues under such policy, p. 345.</p> <p>3. Same. — Indemnity.—Forfeiture.—Equitable Belief Against. — The failure of assured to give “immediate notice” of a claim under an indemnity policy containing such requirement forfeits assured’s right of indemnity thereunder, and such forfeiture can not be relieved against in equity, p. 345.</p> <p>4. Same. — Indemnity.—“Immediate Notice.” — “Immediate notice” of a claim is not given to an indemnity company by assured where claim was made and suit filed October 12, the cause put at issue on December 23, and notice thereof given to such company on January 13. p. 34G.</p> <p>5. Samé. — Indemnity.—Forfeiture.-—Waiver.—The defense, by an indemnity company, of an action for damages for personal injuries against assured is not a waiver of a forfeiture of its indemnity policy providing for “immediate notice” of any claim to be sent by assured to such company, where assured agreed that such action of the company should not constitute a waiver, p. 346.</p>

<p>Erom-Daviess Circuit Court; II. Q. IIougMon, Judge.</p> <p>Action by Winfield A. IToggatt against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Knox Circuit Court; Orlando II. Cobb, Judge.</p> <p>Action by Frank A. Thuis as administrator of the estate of Theodore Thuis, deceased, against tiro City of Vincennes. From a judgment for defendant, plaintiff appeals.</p>

<p>From Elkhart Circuit Court; Francis D. Merriii, Judge.</p> <p>Action by Coppes, Zook & Mutschler Company against Semon Bache & Co. and another. From a judgment for plaintiff, defendant Semon Bache & Go-, appeals.</p>

<p>1. Tbial. — Motion to Produce Papers. — Definiteness.—A motion, in an action on a fire policy, for the court to compel defendant to produce, for plaintiff’s inspection, the proofs of loss, all letters written by defendant’s agent to it concerning plaintiff’s loss, and all letters written by plaintiff to said agent concerning his application for insurance and his loss, is sufficiently definite, p. 303.</p> <p>2. Insurance. — ■ Application.— Interrogatories.— Warranties.— Opinions. — The answers to interrogatories as to the value of the property, in a- fire insurance application, are not warranties, but mere expressions of opinion, p. 303.</p> <p>3. Same.- — Application.— Proofs of Loss.— False Statements.— Ealse statements by assured in the application for a fire policy and in the proofs of loss do not vitiate such insurance, p. 303.</p> <p>4. Pleading. — Ansioer.—Insurance.-—Negligence of Plaintiff in Permitting Building to Burn. — Conclusions.—An answer, in an action on a fire policy, alleging that plaintiff negligently stood by and permitted the insured building to burn, is bad, conclusions and not facts being alleged, p. 304.</p> <p>5. Insurance. — Additional.—Disclosure.—Misrepresentations.—Validity. — A fire policy on plaintiff’s property is not -vitiated by plaintiff’s representation in his application that there was $875 additional insurance thereon, whereas such additional policy was for $950, $75 of which was on “firearms and eggs,’’ such not being covered by the policy in suit. p. 305.</p> <p>O. Statutes.— Construction.— Civil Procedure.— Record.— What Included. — Under the act of 1903 (Acts 1903, p. 338, §3) a paragraph of answer, which the court refuses to allow to be filed, is a part of the record, p. 300.</p> <p>7. ' Pleading. — Answer.—Insurance.—A dditional. — Election.— Tender. —An answer, in an action on a fire policy, which alleges a condition in such policy nullifying same on account of undisclosed additional insurance, and which further alleges that immediately after such company’s ascertaining such additional insurance, it elected to avoid the policy and returned the unearned portion of the premium, which plaintiff refused to accept, states a defense to such action, p. 306.</p> <p>8. Same. — Answer.—Amendment.—Leave to File. — Refusal. — Discretion. — Abuse.—It is an abuse of discretion by the trial court to refuse the defendant leave to file a paragraph of answer during the trial on May 23, when defendant ascertained the facts of such answer during the progress of such trial on May 22, where proper diligence was shown to ascertain such facts prior thereto, p. 367.</p>

<p>1. Pleading. — Complaint. — Money Due Under Written Contract.— Indebitatus Assumpsit. — Indebitatus assumpsit lies, regardless of the Indiana code of civil procedure, for the recovery of a sum due under a written contract fully performed by the plaintiff, p. 371.</p> <p>2. Trial. — Instructions.—Written Contract. — Recovery on, Under Indebitatus Assumpsit. — It is not error to refuse to instruct that a recovery of the amount due under a written contract for goods delivered can not be had in the common-law action of indebitatus assumpsit. p. 372.</p> <p>3. Evidence. — Defects in Monument. — Probable Cause of. — Where the answers to the interrogatories showed that plaintiffs’ contract was to deliver a monument free from defects, f. o. b. cars at shipping point, and that they did so, and that the monument was not defective at the time of the trial, evidence by plaintiffs as to what might cause cracks or checks in such a monument, even though erroneous, was harmless, p. 372.</p>

<p>1. Pleading. — Complaint.—Negligence.—Master and Servant. — Safe Place. — A complaint by the servant against his master for damages for personal injuries on account of negligence in failing to provide a safe place in which to work, must show that it was such servant’s duty to go into or work in such unsafe place, p. 370.</p> <p>2. Same. — Inferences to Supplg Material Pacts. — Courts can not draw inferences from general allegations in a pleading in order to supply material facts, p. 376.</p> <p>3. Pleading. — Awkward Statement of Facts. — Where a pleading fairly, though awkwardly, states the material facts, it will be sustained as against a demurrer, p. 376.</p> <p>4. Negligence. — Elements of. — Actionable negligence consists of three elements: (1) A duty on the part of defendant to protect plaintiff from the injury; (2) a failure by defendant to perform that duty, and (3) an injury to plaintiff on account of such failure, p. 377.</p> <p>5. Pleading.- — Construction of. — A pleading must be construed according to its material and leading allegations, and from its general scope and tenor, p. 377.</p> <p>6. Same. —- Complaint. — Safe Place. — Overtaxing Floor Space With Manufactured Products. — A complaint by the servant against his master for negligence in overtaxing the floor space of his plant with the manufactured product must show that such a quantity of goods was stored that, if piled with ordinary care, it could reasonably be foreseen that some injury would probably result therefrom, p. 378.</p> <p>7. Same. — Negligence.—Proximate Cause. — In a complaint for negligence such facts must be averred as show by way of cause and effect that defendant’s negligence caused plaintiff’s injuries, p. 379.</p>

Erom Hamilton Circuit Court; Ira, W. Christian, Judge. Action by the State of Indiana, on the relation of William B. Prather and others, against Edmund J. Miller and others. Erom a judgment for relators, defendants appeal.

<p>Erom Howard'Circuit Court; J. F. Elliott, Judge.</p> <p>Action by Lewis W. Harness against tbe City of Kokomo. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Julia M. Spees against the City of Vincennes. Erom a judgment on a verdict for plaintiff for $1,600, defendant appeals.</p>

<p>Erom Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by John W. Clapp, as administrator of the estate of Dean C. Clapp, deceased, against the Baltimore & Ohio Southwestern Railroad Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Building and Loan Associations. — Membership.—Acceptance of Conditions. — Where persons apply for membership in a building and loan association, and accept the stock thereof on the conditions named therein, they are bound by such conditions, p. 414.</p> <p>2. Same. — Bonds.—Mortgages.-—Fraudulent Representations. — Where persons borrowed money from a building and loan association, knowing the provisions of the by-laws thereof, and they were not deceived, nor prevented from knowing the provisions of the note and mortgage which they signed in securing the loan from such association, they will be compelled to perform the terms of such bond and mortgage, p. 415.</p> <p>3. Same.— Fraudulent Representations of Agent.— Opinion.— Where the statements made by the agent of a building and loan association to a borrower are merely the expressions of opinion as to the length of time required to mature the stock and cancel a loan, the borrower will be held to the terms of the bond and mortgage given for such loan, p. 415.</p>

From Wells Circuit Court; John M. Smith, Special Judge. Action by St. Paul’s Congregation, as represented in the Synod of Northern Indiana of the General Synod Evangelical Lutheran Church of the United States, and others against Eli Houtz and others. • From a. decree for defendants, plaintiffs appeal.

<p>Erom Newton Circuit Court; Emory B. Sellers, Special Judge.</p> <p>Action by Blanche Sigler and others against Everett Hal-stead. Erom a judgment for plaintiffs, defendant appeals.</p>

<p>From Olay Circuit Court; Presley O. Qolliver, Judge.</p> <p>Action by Corwin E. Moudy against the Standard Pottery Company. From a judgment on a verdict for plaintiff for $2,000, defendant appeals. (On petition to- transfer to Supreme Court. Denied. 164 Ind. 656.)</p>

<p>From Superior Court of Marion County (66,830); J ohm, L. McMaster, Judge.</p> <p>Action by Silver, Burdett & Co. against the Indiana State Board of Education and others. From a decree for defendants, plaintiff appeals.</p>

<p>1. Appeal and Error. — Motion to Remand.- — Ground for New Trial.— Assignment on Appeal. — The overruling of a motion to remand a cause to the court from which a change of venue had been taken, is a ground for a new trial, and can not be assigned independently as error on appeal, p. 471.</p> <p>2. Pleading.— Complaint.— Jurisdiction. — Want of.— Demurrer.— A demurrer to a complaint for want of jurisdiction over the subject-matter will be overruled unless the want thereof appears upon the face of the complaint, p. 471.</p> <p>3. Trial. — Instructions.—Negligence.—Results of. — An instruction in a negligence case which states that the ordinary care to be used “is required to be in proportion to the danger to be avoided and the fatal consequences that might result from the neglect” is not erroneous, p. 471.</p> <p>4. Street Railroads. — Negligence.—“Last Clear Chance.” — Duty of Motorman to Observe. — It is the duty of a motorman of a street car to exercise ordinary care in watching for persons or vehicles on Ihe track, and if he sees, or by the exercise of ordinary care could have seen, any one in a position of danger, he should stop his car to avoid injury, otherwise the street railway company is liable, p. 472.</p> <p>5. Trial. —■ Interrogatories. — Answers. — Negligence. — “Last Clear Chance.” — Knowledge. — Where the answers to the interrogatories show that the motorman of a street car saw plaintiff’s perilous situation in time to avoid a collision, an instruction that actual knowledge of such peril was not necessary to render the street railroad company liable is harmless, even if erroneous, p. 473.</p> <p>6. Evidence.- — Empert.— Distance Reeguired to Stop a Street Car.— The distance required in which to stop a street car by the use of the brakes is a proper subject for expert testimony, p. 473.</p> <p>7. Same. — Ordinary Care. — What Is. — Witness May Not State. — A witness can not testify what is or what is not ordinary care, such question being exclusively for the jury. p. 474.</p> <p>8. Same. — Ordinary Care. — Distance to Stop Car. — Evidence as to the distance required to stop a street ear is not objectionable as an invasion of the province of the jury as to the question of what is ordinary care. p. 474.</p> <p>9. Trial.- — Interrogatories.—Negligence.—Contributory.—Street Railroads. — Where the answers to the interrogatories show that plaintiff’s horse took fright and shied onto the street car track without any negligence on plaintiff’s part; that defendant’s motorman, 200 feet away, saw the horse approaching; that he could have stopped his car within 35 feet; that when 40 feet away he knew that plaintiff could not get off the track; that he did not do what he reasonably could to stop the car, such answers neither show freedom from negligence on the part of the street railroad company, nor contributory negligence on the part of plaintiff, p. 475.</p> <p>10. Street Railroads. — Driver on Track. — Negligence. — Contributory. — Question for Jury. — The questions of the negligence of a street railroad company and the contributory negligence of a driver on the track, where the evidence is capable of diverse inferences and conclusions, are for the jury. p. 476.</p>

From Johnson Circuit Court; Vinson Carter, Special Judge. Grafton Johnson filed his final report as receiver of the property of James T. Polk, to which James T. Polk and others filed exceptions. From a judgment in favor of the receiver, exceptors appeal. (On appeal to Supreme Court, see 160 Ind. 292.)

<p>1. Principal and Agent. — Railroads. — Conductors. — Authority.— Presumption. — The general authority of a conductor of a railroad will be presumed from his known duties, p. 488.</p> <p>2. Pleading.— Complaint.- — Judicial Notice.- — Duty of Conductor of Railroad. — Oourts take judicial notice that certain conduct is within the scope of employment of the conductor of a train, and it is unnecessary to allege in a complaint that such conduct is within the scope of his employment, p. 488.</p> <p>3. Same. — Complaint.—Negligence.—Railroads.—Conductor.—Misfeasance. — A complaint alleging that the conductor of a train negligently carried plaintiff past his destination, and negligently caused him to get off the train on a dark, rainy night, and negligently directed him as to the way to return to his destination, in the course of which he was seriously injured, sufficiently shows that such conductor was acting within the scope of his authority, and therefore shows a liability against the company, p. 489.</p> <p>4. Cabbiebs. — Passengers.—Railroads.—Negligence.—Proximate Cause. —Carrying Beyond Station. — -Where a conductor negligently carries a passenger beyond his destination and puts him off on a dark, rainy night, and negligently directs him the way in which to return, in the course of which return he suffers injuries, the negligence in carrying such passenger beyond his destination is the proximate cause of his injuries, p. 490.</p> <p>5. Same. — Passengers. — Carrying Beyond Destination. — Attempt to Return. — Contributory Negligence.- — Where a carrier negligently carries a passenger beyond his destination and puts him off on a dark, rainy night, in a solitary place, and negligently directs him to return by a certain way, such passenger is not guilty of contributory negligence in attempting so to return, p. 491.</p> <p>6. Tbial. — Instructions. — Negligence. —■ Contributory. — Burden of Proof. — An instruction, in a personal injury case, that “the defendant must prove such defense [contributory negligence] by a fair preponderance of all the evidence,” and another that plaintiff, upon the proper proof, should recover “unless you further find that the defendant has proved by a fair preponderance of all the evidence that the plaintiff’s negligence contributed to his injuries,” are both erroneous, as leaving an inference that the jury should not consider any evidence introduced by plaintiff which might tend to show such contributory negligence, p. 491.</p>

<p>Erom Howard Circuit Court; J. F. Elliott, Judge.</p> <p>Action by Adam Stabl and others against Reuben Shenk and another. Erom a decree for plaintiffs, defendants appeal.</p>

<p>Erom Fountain Circuit Court; Will Isham, Special Judge.</p> <p>Action by Frances A. Hunter against Frederick L. Gemmer as executor of the last will of Henry Tuttle, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Henry Circuit Court; John M. Morris, Judge.</p> <p>Action by the Sequatchie Handle Works against Charles W. .Jennings. From a judgment for defendant, plaintiff appeals.</p>

<p>From Grant Superior Oourt; B. F. Harness, Judge.</p> <p>Action by Jacob B. Leapley and another against Nellie Chaplin and others. From a decree for plaintiffs, defendants Nellie Chaplin and Albert S. Chaplin appeal.</p>

Erom Parke Circuit Court; A. F. White, Judge. Action, by Isaac N. Pierce, as administrator for the estate of Leander Carithers, deceased, against Rowland Vansell and wife. Erom a decree for defendants, plaintiff appeals.

<p>Railroads. — Eminent Domain. — Award.—Payment.—Estoppel to Appeal. — Where an award is made to the landowner in the case of a condemnation of land by a railroad company for its right of way, and such company pays such award to the clerk of the court under the provisions of §5160 Burns 1901, §3907 R. S. 1881, providing that upon payment of such award possession of such land may bo taken by such railroad company notwithstanding its appeal from such award, such company is not estopped by such payment from prosecuting such appeal, since such payment is not voluntary in a legal sense.</p>

<p>From Superior Court of Marion County (64,960) ; Vinson Carter, Judge.</p> <p>Action by Emma James against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Answer.—Bills and Notes. — Action by Assignee. — Real Party in Interest. — An answer, by the makers of a promissory note in an action by the assignee thereof, which states that such note “does not now, nor has it ever belonged to the plaintiff, * * * and that he is not the -real party in interest,” is insufficient, since it virtually admits the assignment, and does not state any facts to negative plaintiff’s legal ownership, p. 559.</p> <p>2. Bills and Notes.. — Indorsement in Blanh. — Efect.—A negotiable promissory note, payable to order, is rendered payable to bearer by the payee’s indorsement thereof in blank, p. 553.</p> <p>3. Same. — Garnishment of. — Assignment.—The maker of a negotiable note can not be subjected to garnishment proceedings in an action against the debtor without proof that such debtor is the legal or equitable owner of such note. p. 553.</p> <p>4. Same. — Assignment.—Action Pending. — Notice.—The assignee of a negotiable note, taken for value, in due course, without notice, is not prejudiced by reason of an action pending against a former owner of such note. p. 553.</p> <p>5. Pleading. — Answer.—Bills and Notes. — Payment.—Res Judicata. —Former Action Pending. — An answer by the makers, to an action on a negotiable note by the assignee, which fails to show payment to the rightful holder, or a prior adjudication of his rights, or another action pending between the parties to the suit concerning the same subject-matter, is bad. p. 554.</p>

<p>From Wabash Circuit Court; H, B. Shively, Special Judge.</p> <p>Action by David Eike» against the Lake Erie & Western Railroad Company. From a judgment on a general verdict for plaintiff for $500, defendant appeals.</p>

From S't. Joseph Circuit Court; Lucius Hubbard, Judge. Action by the City Rational Bank of Goshen against the Goshen Woolen Mills Company and others. From a judgment for certain defendants, plaintiff appeals. Transferred to Supreme Court under subdivision one, §1337j Burns 1901, Acts 1901, p. 565, §10. (On transfer to Supremo Court, see 163 Ind. 214.)

<p>From Tipton Circuit Court; James F. Elliott, Judge.</p> <p>Action by Clement V. Todd against Thomas W. Cage and wife. From a decree for defendants, plaintiff appeals.</p>

<p>1. Appeal and Erboe.- — New Trial. — Recovery Too Large. — The Appellate Court will not disturb the verdict because the amount of recovery was too large, where the evidence was conflicting, p. 591.</p> <p>2. Same. — New Trial. — Joint Assignment. — Where appellant, in his motion for a new trial, jointly assails several instructions given, and on appeal questions only one of such instructions, no error is presented. p. 502.</p> <p>3. Same. — Instructions.-—Bill of Exceptions. — The instructions given in a cause can not be brought into the record on appeal by incorporating them with the evidence and certifying same in an original bill of exceptions as provided by the act of 1897 (Acts 1897, -p. 244, §638a . Burns 1901). p. 592.</p> <p>4. Same. — Instructions.-—Failure to Show Those in Bill of Exceptions Were All given. — A failure to show in the bill of exceptions that the instructions included therein were all that were given in the cause is fatal to any question sought to be raised upon such instructions, p. 593.</p>

<p>Erom Superior Court of Vanderburgh County; John II. Foster, Judge.</p> <p>Action by the Union Investment Company of Indiana against Ollie B. McKinney. Erom a judgment for defendant, plaintiff appeals.</p>

<p>1. Tíoax, — Eminent Domam. — Railroads.-—Damages.—Right to Open and Olose. — In a railroad condemnation proceeding the burden of proving damages is on the landowner, and he has the right to open and close, p. 602.</p> <p>2. Evidence. — Eminent Domain. — Railroads.—Damages.—Oost and Sale Price of Land. — Where the landowner, in a railroad condemnation proceeding, testifies as to the value of the land sought to be condemned, the railroad company, on cross-examination, may show what such landowner paid for such land and what he received for a portion of such land which he had sold. p. 603.</p>

<p>From Tipton Circuit Court; James F. Elliott, Judge.</p> <p>Action by Nimrod Kemper against Theodore M. Nance. From a decree for plaintiff, defendant appeals.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, .Judge.</p> <p>Action by Minnie B. Smith against Aaron H. Smith. From a decree for plaintiff, defendant appeals.</p>

<p>From Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Richard L. Leeson, Jr., against Henry H. Taylor and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error. — Transcript.—Appellate Court Rules. — A failure of appellant to comply with Appellate Court rule three, providing that the transcript shall be provided with index and marginal notes, is a sufficient ground for dismissal of the appeal, p. 625.</p> <p>2. Same. — Dismissal.—Motion Therefor. — It is not necessary that a motion to dismiss be filed on appellant’s failure to comply with Appellate Court rule three, the duty being upon the court itself to enforce such rule in all proper cases, p. 626.</p>

<p>1. Pleading. — Complaint.—Railroads.—Negligence.—Bridges.—A complaint, by the administrator of the head brakeman of a freight-train against the company for negligence in maintaining a bridge, which alleges that such brakeman was leaning out between the engine and tender, watching a hot journal on one of the cars, as directed by the rules, when he was struck by such bridge and instantly killed; that he did not know such bridge was more than ordinarily dangerous ; that such bridge was too narrow for the use of the large engines which were in use, and that defendant knew of this, but did not inform decedent, who was ignorant thereof, states a cause of action, p. 627.</p> <p>2. Raileoads. — Bridges.—Negligence in Maintenance. — Question for Court. — The courts will declare as a matter of law that the maintenance of a railroad bridge fourteen feet and one inch wide in the clear does not constitute negligence on the ground that such bridge is insufficient in width, p. 630.</p> <p>3. Negligence. — Railroads.—Ordinary Care. — Anticipation of Possible Accidents. — A railroad company is not compelled to anticipate all possible injuries, but only such as are likely to happen in the usual and orderly conduct of the road. p. 635.</p> <p>4. Raileoads.— Negligence.— Bridges.— Warning.— A railroad company is not guilty of negligence for failing to notify its brakeman of the dangers of a bridge of standard width along its line of road, p. 636.</p> <p>5. Trial.- — Negligence.—Evidence.—When Question of Law. — Where there is no conflict in the evidence in a negligence case, and but one reasonable inference can be drawn from such evidence, a question of law only is presented, p. 636.</p>

<p>Appeal and Eekok. — Joint Exception. — Several Assignment. — No question is presented by a several assignment of errors on appeal where the exception taken below was joint.</p>

<p>From Greene Circuit Court; Orion B. Harris, Judge.</p> <p>Action by Jane Huffman against Josiah E. Huffman. From a decree for plaintiff, defendant appeals.</p>

<p>Erom Lagrange Circuit Court; William J. Danis, Special Judge.</p> <p>Action by Eugene Davis against Lavina Burck. From a decree for plaintiff, defendant appeals.</p>

<p>Erom Lake Superior Court; Ha/rry B. Tuihiil, Judge.</p> <p>Action by the State of Indiana, on relation of Nora Pulzak, against Pante Haralovitch. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Master and Servant. — Employers’ Liability Act. — Negligence of Superintendent. — Evidence.—Where the evidence shows that the plaintiff, a servant in defendant’s mine, was ordered by defendant’s superintendent to hold a block while such superintendent struck such block with a sledge; that the superintendent missed the block and hit the plaintiff, inflicting injuries, defendant is not liable under the employers’ liability act-(§7083 Burns 1901, cl. 2, Acts 1893, p. 294, §1) providing that where an injury results from the negligence of any person in the service of the corporation, to whose order the servant was bound to and did conform, such corporation is liable, since no negligence is shown in the giving of the order by the superintendent, and the accident could not reasonably be anticipated, and no negligence was shown in striking plaintiff with the sledge.</p>

<p>From Kosciusko Circuit Court; Edgar llaymond, Special Judge.</p> <p>Action by Mary Lamb and others against Isaac Medsker and others. From a decree for defendants, plaintiffs appeal.</p>

<p>Railroads. — Highway Crossings. — Failure to Give Signals. — To Whom LiaUe. — Under §§5307, 5308 Burns 1901, §§4020, 4021 R. S. 1881, providing that it shall be the duty of all railroad companies in this State to sound the locomotive whistle and ring the bell at a certain distance before crossing a public highway and for failure thereof be liable for all damages caused thereby, a railroad company is not liable to a person using a highway adjoining the railroad track, but who was not intending actually to cross the railroad track.</p>

<p>Erom Daviess Circuit Court; II. Q. Houghton, .Judge.</p> <p>Action by George W. Messick against, the Southern Indiana- Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error. — Assignment.—Waiver.—Briefs.—A failure to point out, in appellants’ brief, an alleged error is a waiver thereof, p. 685.</p> <p>2. New Trial. — Injunction.-—Nuisance. — Pollution. — Evidence. — A complaint, alleging that defendants operated a strawboard factory and discharged refuse into the river which flowed through plaintiff’s farm, is supported, where the proof shows that the refuse was carried by a circuitous route, finally emptying into such river, p. 689.</p> <p>3. Appeal and Error. — Weighing Evidence. — Waters mid Watercourses. — Pollution.—In an action to enjoin the pollution of a watercourse, where the evidence is conflicting, voluminous and entirely oral, the Appellate Court will not disturb the decision of the trial court on the ground that such decision is against the weight of the evidence, p. 689.</p> <p>4. Statutes.- — Construction.-—Appeal and Error. — Weighing Evidence. — The Appellate Court will not weigh conflicting oral evidence under the act of 1903 (Acts 1903, p. 338, §8), in order to determine on which side the preponderance lies. p. 690.</p>

From Jay Circuit Court; Ciarle J. Lutz, Special Judge. Action by Joseph Zehner against the Dunkirk Land Company and others. From a decree for plaintiff and cross-complainant, the other defendants appeal, the Dunkirk Land Company alone assigning error.

<p>From Superior Court of Marion County (64,033) ; Vinson darter, Judge.</p> <p>Action by Isaac Slifer against tbe Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Posey Circuit Court; O. M. Welhorn, Judge.</p> <p>Action by Clem H. Kevekordes and another against the Evansville & Terre Haute Railroad Company. From a judgment for plaintiff for $1,000, defendant appeals.</p>

<p>From Parke Circuit Court; A. F. White, Judge.</p> <p>Action by Emma S. Potts against the Chicago & Southeastern Railway Company. From a judgment for plaintiff for $1,334.50, defendant appeals.</p>

From Dearborn Circuit Court; William 8. Holman, Special Judge. Condemnation proceedings by the Cleveland, Cincinnati, Chicago & .St. Louis Railway Company. From judgments refusing to permit plaintiff to litigate awards after payments, plaintiff appeals.

<p>Prom Dearborn Circuit Court; William 8. Holman, Special Judge.</p> <p>Condemnation proceedings by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom judgments refusing to .litigate awards after payments, plaintiff appeals.</p>