Carlisle. Appellant as trustee denied this petition on the ground that it was not signed by a majority of the legal voters of school district No. 4. Thereupon an appeal was taken to the county superintendent of schools, who, after a hearing, held that the petition was signed by a majority of the legal voters of said district, and an order was entered directing appellant to comply with the request of the petition and to make the consolidation prayed for therein. After the decision of the county superintendent, an attempt was made to appeal to the state superintendent of public instruction by filing papers in his office, but that official after consideration decided that he had no jurisdiction to determine the question sought to be presented and accordingly dismissed the appeal. After the proceeding was so finally disposed of, relator requested appellant to comply with the order of the county superintendent of schools directing him to make the order of consolidation prayed for in such petition, but appellant refused to comply, informing relator that he would not do so unless compelled to act.

The proceedings before the school officers are governed by sections 6421 and 6667, Burns 1914. The first of these sections provides: "That whenever a majority of the legal voters of any school district or corporation shall petition the trustee or trustees of such school district or corporation for the abandonment of their schools and the consolidation of their schools with the schools of some other school district or corporation in the same township, it shall be the duty of the trustee or trustees of such school district or corporation to comply with such petition, and to provide for the education of the children of such abandoned district or corporation in other schools as asked for in such petition."

The second provides that:

"Appeals shall be allowed from decisions of the (township) trustees relative to school matters to the county superintendents, who shall receive and promptly determine the same according to the rules which govern appeals from justices of the peace to circuit courts, so far as such rules are applicable; and their decisions of all local questions relating to the legality of school meetings, establishment of schools, and the location, building, repair or removal of schoolhouses, or transfers of persons for school purposes, and resignation and dismissal of teachers, shall be final."

ing appellant to comply with and obey the order made by the decision and judgment of the county superintendent of schools.

The judgment and determination by the county superintendent of schools of a question which he is given power and jurisdiction to decide under the statutes cited cannot be attacked in a collateral proceeding. The power to hear and determine carries with it the power to decide wrong as well as to decide right, and the decision, whether right or wrong, is binding on the parties until reversed on appeal or set aside in a direct proceeding brought for that purpose. correctness of such a decision cannot be questioned in a collateral proceeding. Stone v. Fritts, 169 Ind. 361, 82 N. E. 792, 15 L. R. A. (N. S.) 1147, 14 Ann. Cas. 295; Carnahan Tr. v. State ex rel., 155 Ind. 156, 57 N. E. 717; Henricks Tr. v. State ex rel., 151 Ind. 454, 50 N. E. 559, 51 N. E. 933; Frost v. State ex rel., 181 Ind. 581, 105 N. E. 51.

The

Appellant contends that no appeal lies under section 6667, supra, in a case of this kind. The wording of the statute is such as to silence all controversy; the provision being that appeals shall be allowed from decisions of the (township) trustees relative to school matters to the county superintendents, who shall receive and promptly determine the same according to the rules which govern appeals from justices of the peace to circuit courts so far as such rules are applicable.

The court did not err in its conclusions of law. The application of the principle of law announced to the other questions presented by the assignments of error is decisive of all such questions. Judgment affirmed.

(187 Ind. 358)

CHICAGO & E. R. CO. v. STEELE. (No. 23062.)

(Supreme Court of Indiana. May 15, 1918.) APPEAL AND ERROR 835(2)—ReheariNG— OBJECTION NOT PRESENTED ON ORIGINAL HEARING.

Objection on rehearing to an instruction as being in conflict with the rule announced in a previous decision was waived through failure to present it in appellant's original brief.

Appeal from Circuit Court, Allen County;
John W. Eggeman, Judge.

On petition for rehearing. Petition denied.
For former opinion, see 118 N. E. 824.

A sufficient statement of the facts shown by the record has been made to show the applicability of the statutes cited. The trial court, upon a finding of facts more comprehensive, stated as its conclusions of law that the decision of the county superintendent of SPENCER, C. J. In support of its petition schools ordering appellant to comply with for a rehearing appellant earnestly insists the prayer of the petition for the consolida- that in our original opinion we passed, withtion of district No. 4 with the schools of out deciding, one of the principal questions Carlisle was final, and that the court had no presented by the appeal, viz.: "Whether or authority to inquire into or determine as to not an employé can be spared from the efwhether a majority of the legal voters of fects of contributory negligence while consaid district did in fact sign such petition, forming to any order of his superior." It is and that a mandate should issue command-true that this issue is not expressly treated

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in the opinion as heretofore rendered, but appellant who fails to demur to a complaint counsel overlook the fact that some of the and thus waives objection to the sufficiency questions there under consideration were dis- of the facts stated therein, cannot thereaftposed of, in their substance, through an adop-er predicate error on the giving of an intion of the conclusions reached in the case of J. Woolley Coal Co. v. Tevault, 118 N. E. 921, decided a few days before. It was there held that the presence of contributory negligence, as the term is properly used, will always defeat an action under the Employers' Liability Act of 1911, but that its existence in a given case is a matter to be determined by the jury as an issue of fact.

PRUDENTIAL INS. CO. OF AMERICA v. given in this case, and in the Dunham and

ed. It is argued that the provision abolishing the fellow-servant rule relieved employés of the assumption of risk as to all dangers resulting from the negligence of fellow servants, and that, in this case, if it appears that the dangerous condition of the face of the coal was the result of negligence on the part of the loaders, who were fellow servants of decedent, then decedent cannot be held to have assumed the risk of such danger, even though he knew of such condition or by the exercise of due care could have learned it.

While the reasoning seems plausible, and the conclusion reached appears logical, I cannot give my approval to the proposition so advanced. It cannot be true that the provisions contained in section 1 of the act entirely absolve the servant from the assumption of. risk as to all danger occasioned by the negligence of coservants. At common law a servant was precluded from recovering for an injury resulting from the negligence of a fellow servant without regard to his actual or

LAIRY, J. The court in deciding the question presented by the record and briefs in this case was required to determine the extent to which the common-law liability of a defendant in actions for negligence falling within the provisions of the statute under consideration is affected by the provisions of such act. After a careful consideration of the facts in question as a whole, and after a consideration of the several sections and provisions of the act, I find myself unable to give my assent to the construction | constructive knowledge of the danger occawhich the court has placed upon some of its provisions. The construction to be placed on this act is of so much importance that I feel constrained to express my views in a separate opinion.

. By the first section of the act the rule known at common law as the fellow-servant rule is abrogated where five or more persons are employed. Prior to the enactment of this statute the common-law rule had become firmly settled that a master is not responsible to those engaged in his employment for injuries suffered by them as a result of negligence on the part of other servants engaged in the same common or general employment. The provision of section 1 of the act to the effect that an employer under the conditions stated shall be liable for the injury or death of an employé resulting in whole or in part from the negligence of his, its, or their agents, servants, employés, or officers, has the effect to make the employer liable to his employés for the negligence of servants engaged in the same common or general employment to the same extent that he is liable for his own negligence or that of his vice principals.

sioned thereby. The provision of the statute
which we are now considering imposes lia-
bility on the employer for negligence of his
servant causing injury to a coservant. If
the injury to a coservant results from a dan-
gerous condition caused by the negligence of
a fellow servant, he may rely upon such neg-
ligence for a recovery, in the absence on his
part of actual or constructive knowledge of
the danger; but if he knew of the danger oc-
casioned by the negligence of his fellow serv-
ant or if he could have known of it by the
exercise of reasonable care, the doctrine of
assumed risk applies unless abrogated by
some other provision of the act. The liability
of the master for the negligence of his em
ployés is thus placed on the same basis as his
liability for his own negligence, and that of
his vice principals. To hold otherwise would
be to impose upon an employer a greater re-
sponsibility in respect to the negligence of
an employé than would rest on him on ac-
count of his own negligence or that of a vice
principal, as in the latter case he might in-
voke the doctrine of assumed risk as to known
dangers, but in the former he would be pre-
cluded by the statute from doing so.
I can-
not assent to such a construction.

Appellee asserts that this provision of section 1 wholly abrogates the doctrine of assumption of risk in its application to dangers Section 2 of the act deals with the quesoccasioned by the negligence of fellow serv- tion of contributory negligence. The first ants. It has been frequently said that a sentence places the burden of proving contribservant by his contract of employment as-utory negligence on the employer in consumes the risk of all dangers caused by neg-formity with the act of 1899 (Acts 1899, p. ligence on the part of his fellow servants, 58). The second sentence is somewhat obwhich statement is generally regarded as the scure for the reason that the language emreason underlying the common-law fellow-ployed seems to confuse the defense of conservant rule which denies to a servant the tributory negligence with the rule of assumpright to recover for injuries so caused. Ap- tion of risk. The language is: pellant asserts that the provisions of section 1 abrogate the fellow-servant rule, and that the doctrine of assumption of risk goes with it in so far as the dangers occasioned by the negligent acts of fellow servants are concern

"No such employé who may have been injured or killed shall be held to have been guilty of negligence or contributory negligence by reason of the assumption of the risk thereof in any case where the violation by the employer or his, its or their agents or employés, of any

ordinance or statute enacted, or of any rule, regulation or direction made by any public officer, bureau or commission, was the cause of the injury or death of such employé."

untarily and knowingly encounters a danger and receives an injury as a result, he will not be precluded on the grounds of contributory negligence from a recovery, unless it appears that, in doing so, he did not exercise care and caution commensurate with the known danger. As to whether he did so or not would be a question of fact for the jury to be determined from the facts of each particular case, as section 7 of the act provides that all questions of contributory negligence shall be questions of fact for the jury to deSo construed, section 2 is consistent with every other provision of the act, and is in no way in conflict with the provisions of section 3 which abrogate assumption of

cide.

gers only which are expressly enumerated therein. If the construction placed upon any part of section 2 by the opinion in the case of Vandalia R. Co. v. Stillwell (1913) 181 Ind. 267, 104 N. E. 289, Ann. Cas. 1916D, 258, is in conflict with the instruction here made, that opinion should be modified to the extent of such conflict.

In determining the meaning of this sentence, the court will look to the law as it existed prior to the enactment of the statute, and to the evil which it was intended to remedy. The courts of last resort in this state had held that a servant could not be denied a recovery on the ground that he had assumed the risk of a danger which was the result of the failure of the matter to obey or conform to a statute or ordinance, but the courts likewise held that the master in a case might defend on the ground that the servant was guilty of contributory negligence in encounter-risk with reference to the hazards and daning the danger so created. Balzer v. Warring (1911) 176 Ind. 585, 590, 95 N. E. 257, 48 L. R. A. (N. S.) 834; Davis Coal Co. v. Polland (1902) 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319. It was the evident purpose of the Legislature to modify the law as thus announced so as to entirely cut off the defense of contributory negligence in cases where the servant voluntarily encountered. a danger occasioned by the failure of the master to obey or conform to any ordinance or statute enacted, or to any rule, regulation, or direction made by any public officer, bureau, or commission; the meaning of the language being that no employé shall be held guilty of contributory negligence by reason of his having voluntarily encountered a known danger of the kind specified. Where an injury results from a danger arising in the manner prescribed the servant cannot be denied a recovery on the ground of assumption of the risk under the former holdings of this court, and the provision under consideration precludes the employer from making any defense in such a case on the grounds of contributory negligence.

The third sentence of section 2 deals with contributory negligence of the servant in encountering dangers other than those specified in the preceding sentence. As to such dangers it provides that:

"In actions brought against any employer under the provisions of this act for the injury or death of any employé, it shall not be a defense that the dangers or hazards inherent or apparent in the employment in which such injured employé was engaged, contributed to such injury."

The other parts of this section deal with contributory negligence as a defense, and, while the part quoted is somewhat obscure in its meaning, it is safe to assume that the Legislature by this language had reference to the defense of contributory negligence and not to assumption of risk. So construed it means that the fact that an employé knowingly encounters a danger, either apparent or inherent, which contributed to the injury shall not, of itself, be sufficient to establish contributory negligence as a matter of law. In other words, if an employé vol

The part of the act which deals with the doctrine of assumption of risk and modifies the common-law rule on this subject is section 3. By the provisions of this section; three classes of risks are specified as to which the doctrine of assumption of risks shall not be held to apply. The first class includes all hazards arising from the violation of a law or ordinance by the employer, or from such violation of any rule, direction, or regulation made by any public officer or commission. The second class includes all hazards which result from, or are created by, the obedience of the injured servant to any order or direction of the employer or of any employé of the master whose orders or directions the injured servant was under obligations to conform to or obey. The third class includes all dangers arising from any defect in the place of work furnished to the employé by his employer, or to any tool, impliment, or appliance so furnished, where such employer had knowledge of such defect, or might have obtained such knowledge by the exercise of ordinary care in time to have repaired such defect, or to have discontinued the use of such working place, tool, implement, or appliance before the injury occurred. The statute places upon the employer the burden of proving that he did not have either actual or constructive knowledge of the defect in time to have taken the steps provided for preventing the injury.

In charging negligence on the part of the master with respect to a defective working place or with respect to any tool, implement, or appliance furnished by the master, it was necessary, prior to the enactment of this statute, for the plaintiff to allege facts showing that the master had either actual knowledge or constructive notice of such defective con

was left by the loaders adhering to the roof and extending back from the face of the vein, holding that the danger of such coal falling was not a danger of the working place, and that, as the opportunity of knowledge by the employé was greater than that of the employer such employé must be

dition. The statute has the effect to relieve the plaintiff of the burden of alleging or proving these facts and to place upon the employer the burden of proving that he had no knowledge, either actual or constructive, of the defective condition of such working place, tool, implement, or appliance in time to have repaired the same or discon-held to have assumed the risk. tinued its use before the injury occurred. The common law imposes upon the owner The section under consideration having abrogated assumption of risk in actions for injury caused by defective conditions of the character above enumerated, it is no longer necessary for the plaintiff to allege or prove that he had no notice or knowledge of such defect.

It is not claimed that the danger which caused the injury to appellee's decedent falls either within the first or second class of risks just enumerated, but it is claimed that the working face of the coal as described in the complaint and in the evidence was the working place of decedent within the meaning of the statute. The pleadings and the evidence in this case show that the condition of the working face of the vein was changed every time the coal was shot down and removed. In the operation of the mine it was necessary to cut under the coal and then to shoot it down and remove it. Every time this operation was repeated a new working face was presented, with new conditions and new hazards which the master could not foresee or guard against.

or operator of a mine the duty to use ordinary care to provide safe working places to those employed in the mine, and our statute provides for the appointment of a mine boss and requires that he shall visit and examine every working place in the mine at least every alternate day while the miners are or should be at work, and that he shall examine and see that each working place is properly secured by timbering and that the safety of the mine is assured. He shall see that a sufficient supply of timbers are always on hand at the miner's working place. He shall also see that all loose slate and rock overhead in the passageways through which the miners have to travel to their work is taken down or carefully secured. This accident occurred in one of the rooms where the mining was being carried on, and not in a passageway. Where the mine boss has inspected a room and has seen that it is in a safe condition at that time, he is not requir ed to visit it or to inspect it again until the second day thereafter, unless he receives notice from the miners of a dangerous condition which requires his attention. Section 8580, Burns 1914. In the meantime the miners are engaged at the face of the vein, cutting under the coal, blasting it down, and removing it. Every time this operation is which the miners themselves remove as the repeated dangerous conditions may arise statute evidently contemplated they should do. During this interval, the miners are creating the transient dangers which arise from the prosecution of the work, and they are required to observe them when they arise and to guard against them. Transient dangers thus arising in the progress of the work were not regarded at common law as dangers of the working place for which the master was held responsible, and there is nothing in our statute which changes the common-law rule in this respect. When a word which has a well-recognized meaning at common law is used in a statute, such

The general rule is well settled that it is the master's duty to use reasonable care in providing the servant a safe place to work, but this rule is not applicable to cases where the progress of the very work in which the servant is engaged creates changes in the conditions which surround him from time to time as the work proceeds, thus increasing or diminishing the hazards incident to the work. The reason for thus relaxing the rule in such cases is that it is more than the master can do to keep a changing working place safe from transient shifting hazards which spring up only as the work progresses. The master's duty does not require him to stand over the servant at every stage of the work as it proceeds to see that the place does not become dangerous on account of changing conditions. Island Coal Co. v. Greenwood (1898) 151 Ind. 476, 50 N. E. 36; Labatt, Mas. & Ser. § 588; Finalyson v. Uti-word is held to be used in its common-law ca Mining Co., 67 Fed. 507, 14 C. C. A. 492; Bedford Quarry Co. v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418; Riley v. Neptune, 181 Ind. 228, 103 N. E. 406; Citrone v. O'Rourke, 188 N. Y. 339, 80 N. E. 1092, 19 L. R. A. (N. S.) 340.

This court in the case of Island Coal Co. v. Greenwood, supra, applied the rule thus stated to a case where a machine operator was injured by the falling of coal which

sense, unless the statute clearly shows that it is used in a different sense. Sutherland, Stat. Const. § 253. The part of the statute under consideration which provides that a servant shall not be held to assume the risk of dangers caused by any defect in his working place must be held to refer to such dangers as were regarded at common law as dangers of the working place; therefore the transient dangers which may arise due to the