ing. The questions all occurred in the same connection. The first question in the context was whether there were any printed rules that applied to the common tracks, and the witness answered, without objection, that he (city yard master for the Monon at the time of the collision and for three years before that) had never seen nor heard of any, and that the Monon employés were not supplied with any. The "rules" inquired about were the rules that had become established by usage. The court, in ruling, remarked: "It is probably more a custom than a rule. If it is a well-understood custom or rule of operation, I think he may answer." The objection made was not well taken.

The court overruled appellant's objection to the following question propounded by appellee to her witness Jay, who was fireman on decedent's engine: "State whether or not he [decedent] was acting properly or improperly, or promptly or not promptly." The objection urged in argument here is that the question asks the witness to give an opinion on the very issue the jury were called to try. If the question were such, and if appellant had made a proper objection, and if a prejudicial answer had been allowed to stand, the error would be patent. The question, however, appears in this connection: "Q. Who would you give the signal to? A. To Mr. Martin [decedent]. Q. And then what did Mr. Martin do? A. Whichever way I told him to go, he turned his engine that way. Q. How was he working along there that night? A. The same as ever. Q. State whether he was acting promptly on the signals. (Counsel for defendant objected to the question on the ground that it is incompetent to prove how the engineer was acting.) Q. State whether or not he was acting properly or improperly, or promptly or not promptly. (Counsel for defendant objected to the question on the grounds and for the reasons stated. The court overruled the objection, to which ruling the defendant by counsel at the time excepted.) A. Yes, sir." The context shows that the witness was asked to state the manner in which decedent was acting on the signals given by the conductor for the movement of the engine, and was not asked to give his opinion as to decedent's care or negligence under all the circumstances of the case. If the question was obnoxious to the objection made to the trial court, appellant has waived the error by failing to present and discuss it, and the objection urged here is unavailing, because it was not presented to the trial court. Improvement Co. v. Wagner, 138 Ind. 658, 38 N. E. 49; Stout v. Rayl, 146 Ind. 379, 45 N. E. 515. In addition, the answer was harmless, because the witness did not state whether decedent acted properly or improperly, or promptly or not promptly, in response to the signals.

The court refused to give certain instruc

tions to the effect that the city ordinance was enacted for the protection of the general public in crossing or passing upon railroad tracks, and not for the benefit of railroad employés while engaged in their work. The action of the court was right. Railroad Co. v. Moore, 152 Ind. 345, 53 N. E. 290; Railway Co. v. Peterson, 156 Ind. 364, 59 N. E. 1014.

Other instructions were refused which were based upon the theory that decedent was bound to use reasonable diligence for the purpose of learning whether or not appellant's trains generally ran, or were scheduled to run, over the common tracks in violation of the ordinance and the usages of the tracks, and that, if by reasonable diligence he could have learned of appellant's general practice to violate the ordinance and usage of the tracks, he went upon the tracks at his peril. A person may be bound by constructive knowledge of defects in the place where he works, but he certainly is not affected by constructive knowledge of the dangerous habits of third persons whom he meets on a common highway. What has been said in considering the evidence really disposes of this question. A holding to the contrary would seem to lead to the proposition that a multiplication of iniquities produces right

eousness.

The last complaint is of the court's refusal to give appellant's instructions to the effect that decedent's duty to exercise reasonable care did not end with his own compliance with the ordinance and usages of the track, but that he was required to use diligence, under the circumstances, at all times preceding the collision, to avoid injury to himself. This subject was fully covered by instructions given.

Judgment affirmed.

(157 Ind. 585)

SHEDD et al. v. WEBB et al.1 (Supreme Court of Indiana. Oct. 1, 1901.) MORTGAGES-FORECLOSURE-DISPUTING TITLE -ESTOPPEL-APPEAL.

1. A railway company had possession of certain realty under legislative grant, and operated its road thereon, claiming title, but had no record title. Plaintiffs executed their quitclaim Ideed of such realty to W., taking a mortgage to secure the purchase money, and W. conveyed to the company. Pursuant to agreement between W. and plaintiffs, the former represented to the company that there was no incumbrance on the realty, and by such representations induced acceptance of the deed; and, to aid such conspiracy, plaintiffs withheld their mortgage from record until after the acceptance. Plaintiffs had purchased the land with knowledge that their grantors had been defeated in a suit against the railway company for its possession. Held, that the company was not estopped, in an action to foreclose such mortgage, to dispute the plaintiffs' claim of title to the land described therein.

2. Where premises are conveyed by quitclaim deed, and mortgage is taken to secure the purchase money, the mortgagee's right to defend 1 Rehearing denied,

the title ceases when the mortgage is found to be void.

3. Under Horner's Rev. St. 1897, § 658 (Burns' Rev. St. 1894, § 670; Rev. St. 1881, § 658), prohibiting reversal where the case has been fairly tried on the merits, where the facts found and the evidence in support thereof clearly show that the merits have been fairly determined the court will not disturb the judgment. for rulings on admission and rejection of evidence.

Appeal from circuit court, Lake county; John H. Gillett, Judge.

Action by Edward A. Shedd and others against James A. Webb and others. From a Judgment for the defendant Lake Shore & Michigan Southern Railway Company, plaintiffs appeal. Affirmed.

J. W. Youche and H. S. Barr, for appellants. Miller & Drake, for appellees.

HADLEY, J. Action by appellants to foreclose a mortgage on a strip of ground 100 feet wide and half a mile long, for the collection of an alleged debt of $15,600. All of said land, except 6 feet thereof in width, was claimed by appellee railway company for its right of way, and was occupied by its railroad tracks. Webb, the mortgagor, defaulted. The railway company presented what it terms a "cross complaint" and ten paragraphs of answer. The first nine answers were all partial. The first and third set up a former adjudication of the plaintiff's title as to 94 and 80 feet, respectively, of the mortgaged premises. The fifth counted upon a legislative grant for 94 of the 100 feet. The sixth upon the legislative grant for 80 feet, and the seventh upon adverse possession under claim of right as to 80 feet for more than 20 years. The eleventh was a general denial. Appellants' separate demurrer was sustained to the second, fourth, eighth, and ninth, and overruled as to the fifth, sixth, seventh, and eleventh. The record discloses no ruling upon appellants' demurrer to the cross complaint, which was answered by the general denial. The cross complaint is against the plaintiffs Shedd and Roby, codefendant Webb, and counts upon their joint and active fraud. Special finding of facts. Conclusions of law and judgment for the railway company. Appellants' motion for a new trial was overruled.

There were two mortgages and two paragraphs of complaint, but no question is raised in this court upon the second mortgage and second paragraph of complaint, and the same will receive no further notice.

As sufficient to a full and complete determination of the cause, it is expressly provided in the decree that the adjudication is limited and permitted "to extend no further, as between the plaintiffs [appellants] and the defendant Lake Shore & Michigan Southern Railway Company, than to adjudge that the mortgage referred to is void as to it, and to deny a foreclosure thereof as against it." The question adjudicated appropriately arises upon the cross complaint. The facts ger

mane to the issue upon the cross complaint set forth in the special finding are, in substance, as follows: In 1835 the legislature chartered the Buffalo & Mississippi Railroad Company to build a line of railroad across Lake county, Ind. The mortgaged premises, with much other land, were granted by the United States to the state of Indiana, by letters patent, on March 24, 1853, as "swamp lands," in conformity to the act of congress of 1850, and pursuant to a request by the governor of Indiana to the United States for such patent for said lands, made December 18, 1852. March 5, 1853, the Indiana legislature passed an act purporting thereby "to grant a right of way through any swamp lands belonging to the state, to any railroad company organized, or to be organized under the laws of the state-such right of way to be to the width of one hundred feet." Acts 1853, p. 108. In the fall of 1853, but prior to November 15th of that year, the successor to the rights of the Buffalo & Mississippi Railroad Company and grantor of appellee railway company accepted said legislative grant, and at the time of such acceptance entered upon the lands described in the mortgage, except a strip six feet wide off the southwest side thereof; and said grantor and said appellee have ever since operated its railway upon and claimed title to the mortgaged premises, except said six-foot strip, by virtue of the passage, acceptance, and entry under said legislative act. November 15, 1853, the state of Indiana sold as swamp land, and issued certificates of purchase to George W. Clark for, three certain lots of land traversed by the mortgaged premises, and on July 3, 1854, issued its patent to said Clark for said lands. By mesne conveyances from Clark, appellants became and remained the owners of said lots, except as hereinafter stated. The mortgaged strip extends across said three lots, leaving parts of said lots on each side thereof. In addition to maintaining possession of said railroad track, said railway company constructed prior to 1865, and has continuously to this date maintained, telegraph poles and side fences, or remains thereof, parallel to the track, and such visible markings of possession as were calculated to put all persons concerned upon inquiry as to the extent of the railway company's actual possession. On March 15, 1893, appellants Shedd and Roby executed to appellee James A. Webb their quitclaim deed for said 100foot strip of land, and on the same day Webb executed back to Shedd and Roby the notes and mortgage sued on to secure the purchase money. On March 25, 1893, Webb and wife executed to the railway company their wa ranty deed for said strip for an agreed and valuable consideration. At the time of the conveyance to Webb it was agreed between Shedd, Roby, and Webb that each should represent to the railway company that there was no lien, mortgage, or other incumbrance on said land, and pursuant to said agreement

Shedd, Roby, and Webb did, after the execution of the mortgage, and before the railway company had accepted the deed from Webb, represent to the company that there was no lien, mortgage, or other incumbrance thereon, and by means of said false representations did induce the company to accept said deed, which it would not otherwise have done, with intent thereby to defraud the company to the amount of the mortgage. In aid of the conspiracy to defraud the company, Shedd and Roby withheld their mortgage from record until after the company had accepted the deed from Webb, and duly recorded the same on April 14, 1893. When the railroad accepted the deed from Webb, it had no knowledge or notice that there was any mortgage or incumbrance on the land, and believed in good faith that there was no mortgage or other incumbrance thereon. When the railway company accepted the deed from Webb, it was in the actual, open, notorious, and exclusive adverse possession of all the mortgaged premises, except six feet off the southwest side thereof, under a claim of right, and did not take any possession under its deed from Webb. The court stated its conclusions of law upon the facts found in effect as follows: (1) That the defendant railway company should be relieved of any estoppel to dispute the plaintiffs' claim of title to the land described in the mortgage. (2) That the plaintiffs should have their foreclosure as prayed to recover the amount found due them, together with their costs as against the defendant Webb, but as against the defendant railway company the mortgage described in the complaint should be adjudged null and void. (3) That the court should and does extend this adjudication no further, as between plaintiffs and said railway company, than to relieve said company of said estoppel by deed, to adjudge the mortgage void as to it, and to deny a foreclosure thereof as against it.

The facts averred in the so-called cross complaint are substantially the same as those stated in the special finding above set forth. There is evidence in the record, both written and oral, that tends to prove all those facts, and of a character, too, to forbid this court the right to review or weigh it, under the oft-repeated rule. Assuming, therefore, that the facts found are true, we come to the question presented by the exceptions to the conclusions of law. Here there seems little room for controversy. It is a familiar rule that where one, with full knowledge of his rights and the facts, willfully, by words or conduct, causes another to believe in the existence of a certain state of things, and thereby induces the other to act on that belief, and expend money or assume obligations which he would not otherwise have done, the former will not be permitted, as against the latter, to show that a different state of facts existed at the time. Bobbitt v. Shryer, 70 Ind. 513; Dodge v. Pope, 93 Ind. 480; Wisehart v.

Hedrick, 118 Ind. 341, 21 N. E. 30; Maxon v. Lane, 124 Ind. 592, 24 N. E. 683. The facts here bring this case far within the rule. The railway company had no record title to its right of way, but had possession of the lands in controversy under legislative authority expressed in 1853, except a strip six feet wide, and has ever since operated its railroad thereon and claimed title thereto. In 1889, the special finding further shows, Dayton S. Morgan and Ashley Smith, being then the owners of the lots of land traversed by the mortgaged premises, by appellant Edward S. Roby as their attorney, prosecuted in the Lake circuit court to final judgment, which is still in force, an action against appellee railway company to recover possession of the identical lands, or an assessment of damages, and were unsuccessful both in the circuit and in this court on appeal (Morgan v. Railway Co., 130 Ind. 101, 28 N. E. 548), and pending that litigation, and while the case was here on appeal, appellants Shedd and Roby took a deed for the premises from Morgan and Smith, and received the land impressed with all the binding force and effect of said judgment. Roby, being the active attorney of Morgan and Smith in the suit prosecuted by them, had actual knowledge that his grantors had had their day in court with the railway company, and that the judgment was in favor of the company. With this knowledge, and standing in the shoes of Morgan and Smith, it was obviously the purpose of appellants to secure a retrial of the company's right of possession by a legal fiction which involved the necessity of entrapping the company into the acceptance of title by and through them, and possibly the identical advantage of inducing the company to assume, as a consideration, the obligation of providing conveniences at large expense that would promote the private interests of appellants in the town of Roby. It was to carry this scheme forward that appellants' mortgage was acquired, and by them withheld from public record until the false representations of the trio had succeeded in accomplishing the fraudulent purpose. This was much more than a standing by, much more than a passive fraud, which in many instances will estop the guilty party from asserting a fact contrary to that reasonably inferred from his conduct, to the injury of one misled thereby. Vickery v. Board, 134 Ind. 554, 556, 32 N. E. 880; Board v. Plotner, 149 Ind. 116, 121, 48 N. E. 635. It was a preconceived plan to secure by dishonest means that which could not be otherwise obtained. To give countenance to such conduct would bring reproach upon the law. The court did not err in its conclusions of law.

Appellants having conveyed the mortgaged premises to the mortgagor by quitclaim deed, the only interest they have or claim to have is in virtue of their mortgage, and when it is found to be void their right to litigate the title ceases. The questions, therefore, aris

ing upon the other pleadings become immaterial.

Many questions are presented as reasons for a new trial, but they arise chiefly upon the admission and rejection of evidence, which with very few exceptions relate to the issues not considered in this opinion, and are therefore unimportant. Conceding that the exceptions to the general class and the question arising upon the affidavits of newly-discovered evidence should all be ruled in favor of appellants' contention, we should even then find ourselves precluded by section 670, Burns' Rev. St. 1894 (section 658, Rev. St. 1881; section 658, Horner's Rev. St. 1897), from disturbing the judgment, since the facts found and the evidence in support thereof clearly show that the merits of the cause have been fairly tried and determined in the court below. La Plante v. State, 152 Ind. 80, 52 N. E. 452.

Judgment affirmed.

BAKER, J., took no part in the decision of this cause.

(29 Ind. App. 1)

tions were not inconsistent, so as to mislead the jury.

5. In such case the court in several instructions told the jury that the burden was on plaintiff to prove the material allegations by a preponderance of evidence, and these instructions, framed hypothetically, began with, "If from the evidence." Held, that an objection that the jury could not have understood that they were to be controlled by the evidence was untenable.

6. In an action to recover for injuries caused by a charge of powder blowing out a wall of coal in a mine, a question asking plaintiff to tell what duty the mining boss had to perform in looking after the rooms and entries, and seeing that the walls were kept a proper thickness, is not objectionable as calling for a conclusion.

7. In such action, the party who put in the charge having testified that he did it to knock down coal, a subsequent witness was asked if he knew of any case in which it would be proper to place a charge of powder in a pillar of coal and fire it off after the room was widened and the pillar left between the room and entry, except for the purpose of making a break through. Held, that such question was objec tionable, as calling for an opinion, and since it was immaterial what miners at other times or in other places would do.

8. In such action the charge of negligence was that the particular pillar of coal was negligently suffered to converge towards the entry and become too thin for mining coal, and that shots placed in it were likely to, and did, break through and injure plaintiff, and that it was de

MASTER AND

SERVANT MINES - ASSUMED RISKS-INJURIES-PROXIMATE CAUSE-COM

PENSATORY DAMAGES-INSTRUCTIONS-CON

SISTENCY-EVIDENCE- CONCLUSIONS-WIT

NESSES-OPINIONS-ADMISSIBILITY-EXPERTS

-TESTIMONY-EXCLUSION.

1. Burns' Rev. St. 1894, § 7479, provides that the operator of a coal mine shall employ a competent mining boss to carefully watch over the airways, etc. Section 7472 requires such boss to visit and examine every working place in the mine at least every alternate day, and to examine and see that such places are properly secured by props, and that safety is assured, A boss appointed by an operator failed to examine the mine in which plaintiff worked, as required, and, unknown to plaintiff, the walls between the places where coal was mined became so thin that a charge of powder used in mining blew one out, and plaintiff was injured. Held, that such injury was not due to an assumed risk of the business.

2. In such case the proximate cause of the injury was the negligence of the boss in permitting the wall to become so thin that it could not withstand the force of an explosion, and in permitting a charge to be placed where he was bound to know that it would blow through and injure any one near that point.

3. In an action for personal injuries the court charged that if the jury found for plaintiff the damages should be assessed on the basis of compensation for the injuries sustained, and in doing so they should consider whether plaintiff was permanently or temporarily injured, the question of his physical and mental suffering, loss of time, physician's and nurse's fees, and should award such damages as would compensate for the injuries. Held proper, as the jury could have understood from it that plaintiff was entitled to compensatory damages.

4. The court also gave another charge on the question of damages, instructing that the jury could not award anything by way of speculative damages or by way of punishment of defendant, and that he was only entitled to recover for actual damages. Held, that such instrucRehearing denied,

entries were reasonably safe. A question was asked of defendant's witness as to who had charge of the laying off of rooms and pillars and work in the mine. Held, that such question was immaterial.

9. A decision of the trial court refusing to permit a witness to testify as an expert will not bo reversed on appeal, except for plain error in the exercise of discretion.

10. Where, in an action for injuries sustained by reason of a charge of powder blowing out a pillar of coal in a mine, the facts as to such pillar's thickness, when it was drilled, and the result of the explosion were before the jury, it was not error to exclude an opinion of a witness as to such pillar being safe and proper, since such opinion could not have aided the jury.

Appeal from circuit court, Putnam county; S. M. McGregor, Judge.

Action by John A. Wells against the Eureka Block Coal Company. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Lamb & Beasley, for appellant. S. D. Coffey, A. W. Knight, and George A. Knight, for appellee.

COMSTOCK, J. Action for personal injury, begun in the Clay circuit court, and upon change of venue tried in the Putnam circuit court. A verdict was returned and judgment rendered thereon in favor of appellee for $5,000. The errors assigned are the overruling of appellant's several demurrers to the first and second paragraphs of complaint and its motion for a new trial. The first paragraph may be summarized as follows: The defendant is, and was on the 8th of July, 1898, and prior thereto, a corporation. At the date of accident it was engaged in the business of mining coal in Clay

On

county, Ind. It employed 150 men in its mine. In order to mine and remove coal, the defendant sank a shaft from the surface of the earth to the bed of coal about 85 feet beneath the surface. The coal was hoisted through this shaft. In the course of mining, lateral horizontal excavations were made in the coal stratum. These excavations were called "rooms" and "entries." There was a main entry running from the shaft, and side entries running from the main entry. There was a side entry northwest of the shaft, running north. There was another entry connecting with the north entry, running in a southwesterly direction. In the course of its operations the defendant, prior to the plaintiff's alleged injuries, caused an excavation to be made in the coal stratum on the north entry within 10 feet of the south line of the entry running westerly from the west side of the north entry. the day of the plaintiff's alleged injury the defendant, by its employés, was mining coal in the room or excavation aforesaid. The safety of the men in the rooms required that the rooms or excavations near the entries, and running in the same direction, should run parallel therewith, and that there should be a stratum or pillar of coal left standing between the excavations of from 10 to 12 feet in thickness, in order to prevent the mine from caving in, and to prevent explosions from shots of powder used in mining the coal from injuring the employés in the mine. It was the duty of the defendant to keep in its employ a competent mine boss, whose duty it was to visit and examine the various excavations and working places in the mine at least every alternate day while the mine was in operation, and to see that the safety of the company's employés was assured. It was the duty of this defendant and its mining boss to plan and lay out the excavations in the mine so that the pillars between the excavations in the mine should be and remain of the thickness and safety aforesaid. On the day of the accident plaintiff was in the entry running in a southwesterly direction, at a safe distance from a shot of powder which had just been exploded in the room above referred to, in the line of his duty as an employé of the defendant. He had no knowledge of the unsafe condition of the pillar between the said room and the entry. The defendant at that time and for many weeks prior thereto had in its employ a mining boss, but that boss did not visit the room in question each alternate day, or on any day, nor did he see that safety was assured in the entry where the plaintiff was, nor did he prevent the plaintiff from going into the entry where he was injured, nor did the mine boss or the defendant see that the pillar of coal in question was maintained at the requisite thickness, but the defendant and the mine boss carelessly and negligently refused to perform any of their said duties, and they so care

lessly laid out and planned the line of the room in question that the north line thereof converged as the excavation advanced, so that the pillar between the room and the entry was dangerously weak and thin, to wit, only 4 feet and 10 inches in thickness. With the knowledge that said pillar was so dạngerously weak and thin, the defendant and its mine boss assigned one James O'Brien to work in such room. O'Brien was ignorant of the thin and unsafe condition of the pillar, and without the experience necessary to ascertain its condition. While working in the room in the discharge of his duties, he drilled a hole into the pillar at the point where it was 4 feet and 10 inches thick, and placed powder therein for the purpose of shooting down the coal in the usual way. By reason of the unsafe condition and thinness of the pillar, the explosion of powder which O'Brien put into the same broke through the pillar into the entry, and threw the coal, slate, and débris against the plaintiff with such force and violence as to greatly injure him. It is averred that the injury was without any fault or negligence on the part of the plaintiff, and while he was in the exercise of due care and caution on his part to avoid injury.

Counsel for appellant contend (1) that the plaintiff's injury was due to one of the assumed risks of the business; (2) that the complaint affirmatively shows the plaintiff's injury not to have been the approximate result of the alleged negligence of the defendant.

Appellant owed to appellee the duty of keeping the passageways in its mine safe to use. Appellee was injured in a passageway. Section 7479, Burns' Rev. St. 1894 (section 5480t, Horner's Rev. St. 1897), requires every operator of a coal mine to "employ a competent mining boss,

to care

fully watch over the * * airways," etc. Section 7472 (section 5480m) of the same statute requires the "mining boss to visit and examine every working place in the mine at least every alternate day while the miners of such places are or should be at work, and shall examine and see that each and every working place is properly secured by props or timber, and that safety in all respects is assured," etc. The complaint alleges that appellant was under a duty to appellee to furnish him a safe place to work; and it appears from the complaint that this duty, due at common law and under the statute, appellant neglected to discharge. risks a servant assumes upon entering the employment of a mine are those which occur after the due performance by the employer of those duties which the law imposes upon him. 1 Bailey, Pers. Inj. § 463. In Coal Co. v. Barth, 5 Ind. App. 162, 31 N. E. 586, this court said: "One engaged as a coal miner, to dig out coal in a mine, has a right to assume, in the absence of apparent defects, that a passageway provided in the

The