Opinion, per MATTHIAS, J.

School District, 89 Kans., 225; Board of Education of Hugo v. Couch, 63 Okla., 65, and School Town of Carthage v. Gray, 10 Ind. App., 428. In each of these cases the suspension of school was temporary and the person whose compensation was in issue was required to and did remain in readiness to resume active and actual discharge of his prescribed duties.

In this case the plaintiff in error necessarily was subject to the daily direction and order of the board of education and could not make any engagement or undertake any service which would interfere with his constant readiness to resume the active discharge of the duties imposed. During all such period, therefore, upon each school day, his time and service and the service of his team, which he must necessarily provide and constantly maintain, continued subject to the order of the board of education; and his employment, in so far at least as it prevented his engagement in other occupation or undertaking inconsistent with his duties under his contract, was continuous throughout all of the period in question. He did in fact, upon the resumption of school after such period of suspension, convey the pupils of the district to and from school during the remainder of the school year.

The contingency which here occurred was one which might well have been foreseen and provided against in the contract, but was not. The law will not insert by construction for the benefit of one of the parties an exception or condition which the parties either by design or neglect have omitted from their own contract.

Syllabus.

The judgment of the court of appeals is reversed and that of the common pleas affirmed.

Judgment reversed.

MARSHALL, C. J., JOHNSON, HOUGH, WANAMAKER, ROBINSON and JONES, JJ., concur.

VIGNOLA V. THE NEW YORK CENTRAL RAILROAD

Co.

Negligence - Master and servant - Scope of employment and unlawful act - Boarding railroad car without permission—Section 12543, General Code — Employe obeys orders of superior — Presumptions - Superior acting upon lawful authority - Questions of law and fact-Duty of court and jury — Evidence.

1. Where an employe of a railroad company in obedience to the order of his superior, acting in the scope of his authority, climbed on a moving car in company with the superior while going from one point in the company's yard to another in the prosecution of its business, it is no defense for the company, in an action of negligence by the employe for damages from injuries received while on the car, that the employe had climbed upon it in violation of Section 12543, General Code.

2. In such case the employe in the absence of actual knowledge to the contrary had a right to presume that the foreman in climbing on the car and in ordering him to do so was acting by "permission under the lawful rules and regulations of the corporation managing such railroad," as provided by the section referred to.

3. In order that an issue should be required to be submitted to the jury, it is not essential that there be such a conflict in the testimony of different witnesses as makes it necessary for the jury to determine disputes or questions of veracity. That is not the only province of the jury. Where there is no conflict in the testimony, but nevertheless the unconflicting testimony discloses a variety of circumstances from which different minds may

Statement of the Case.

reasonably arrive at different conclusions as to the ultimate facts shown by the evidence, it is the duty of the jury to determine such ultimate fact. When the decisive ultimate fact is undisputed, there is presented simply a question of law.

(No. 16647-Decided March 29, 1921.)

ERROR to the Court of Appeals of Mahoning county.

John Vignola brought suit in the common pleas court of Mahoning county against the defendant in error to recover damages for personal injuries which he alleges were caused by the negligence and wrongful acts of the defendant.

In his petition he alleges that on the 19th of July, 1917, he was in the employ of the defendant as a laborer in and about its roundhouse in the city of Youngstown, and that while in the performance of his duty as such he was peremptorily ordered and directed by the defendant and its foreman, who was invested with superiority, authority and control over plaintiff, and who exercised the same, to board one of the cars of a moving freight train which was being operated over and along the plaintiff's tracks in the vicinity of the plaintiff's roundhouse, to ride thereon to the New York Central passenger depot in said city with said foreman and another of defendant's employes, and that in obedience to said orders and directions, and relying thereon, plaintiff boarded said freight train and proceeded to ride thereon between two freight cars. The petition then sets forth that said train came to a quick stop and plaintiff received certain injuries to his leg, which are specifically set forth in

Statement of the Case.

the petition. He avers that all of his injuries were directly and proximately caused by the gross carelessness, negligence and unlawful conduct of the defendant and its foreman in the giving of the order above described; in ordering the plaintiff to sit between said gondola cars and wholly failing to warn and apprise plaintiff of the danger in riding in said position in the event of a sudden stop of the train; in failing to warn and apprise the engineer, brakeman or other person in charge of the train that the plaintiff and others were being carried thereon, in order that greater care might be exercised; and in failing to promulgate and enforce proper and safe rules in the conduct of carrying on its work. He avers that the defendant knew or ought to have known of all said dangers and conditions, but that plaintiff was unaware and inexperienced and did not know of all said dangers and conditions and in the exercise of ordinary care could not have known and did not have equal means and opportunity with the defendant of knowing and appreciating the

same.

In its answer the defendant admits that plaintiff was on said day in its employ in and about said roundhouse and elsewhere and at the time of his injury was on his way towards defendant's station to secure certain supplies and that he boarded a slow moving freight train, and it avers that he sat upon the end sill between two cars and that when the train came to a stop very shortly thereafter his leg was injured. Defendant denies the nature and extent of the injury and denies every other allegation in the petition contained, and avers that said freight

Statement of the Case.

train was "owned, operated and controlled by the Erie Railroad Company, and running upon the Erie Railroad Company's tracks."

The defendant further avers that if it should transpire that it was to any extent negligent, which it denies, that the accident to the plaintiff and his injuries were the direct result of his own negligence, carelessness, and inattention directly contributing thereto, and further avers that the plaintiff was thoroughly familiar with the surroundings and with the dangers which he encountered and fully assumed all risks and dangers of a position so voluntarily taken.

In his reply the plaintiff denies all of the allegations in the answer, except the admissions contained therein.

The cause was tried to a jury, and at the close of the plaintiff's evidence the defendant moved to arrest the testimony from the jury and to direct a verdict for the defendant, which motion was overruled. This motion was renewed at the close of all the evidence and was overruled by the court. A verdict was rendered for the plaintiff and the judgment entered thereon was reversed on error by the court of appeals.

The court of appeals included in its entry the ground of reversal as follows: "That the trial court erred in overruling and in not sustaining the motion of the defendant below for a directed verdict in its favor at the completion of the testimony offered by the plaintiff and in overruling and in not sustaining the motion of the defendant at the completion of all the evidence for a directed verdict in