This is not an action by or against the heirs or devisees of David H. Kaufman; neither is it founded on a contract with or demand against him, nor to obtain title to or possession of property, real or personal; nor does it affect any right of his therein. While it may be a misfortune to appellant that a witness who was conversant with facts necessary to their right of recovery was dead, that fact alone is not sufficient to disqualify a party to the action from testifying concerning the same facts. The statutes cited and relied upon do not disqualify him, and we cannot give them a constrained construction, even though a hardship is apparently suffered by appellant. There was no error committed by the admission of the evidence complained of. Judgment affirmed.

RAILSBACK v. PRESIDENT, ETC., OF WAYNE COUNTY TURNPIKE CO. (Appellate Court of Indiana. Sept. 25, 1894.) INJURY TO EMPLOYE-ASSUMPTION OF RISK.

One employed to shovel gravel out of a pit, the side of which is liable to give way from the weight of loam placed on the top thereof, cannot recover for injuries caused by the caving in of such side, where the danger could be seen by any person working in the pit.

Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Action by Franklin Railsback against the president and directors of the Wayne County Turnpike Company for personal injuries. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

C. E. Shively and T. J. Study, for appellant. John F. Robbins, for appellee.

DAVIS, J. This was an action instituted by appellant against appellee to recover damages for personal injuries. The court below sustained a demurrer to the complaint, and, on refusal of appellant to further plead, judg. ment was rendered against appellant.

The only error assigned brings in review the action of the court in sustaining the demurrer to the complaint. The material facts alleged in the complaint in substance are that appellant was employed by appellee to haul gravel; that a part of his duties was to assist to shovel gravel into his wagon, and load the same, when in the gravel pit; that he was directed by appellee to drive into the Smith pit, and there load his wagon, and perform his said duties, and that while he was at work in said gravel pit, and in the proper discharge of his duties under said employment, the bank of said gravel pit caved in, and a large quantity of earth fell upon appellant, and broke his leg, etc.; that the stratum of gravel in said pit where he received his said injuries was at said time about six feet thick, and stood almost perpendicularly, and was not dug out from under the stratum of soil underlying the sand to exceed one foot;

"that said soil underlying said gravel stratum was about three to four feet thick, and not of the usual and ordinary formation of tough clay which is generally known to overlie strata of gravel, but, on the contrary, it was composed of a black, loose, and brittle loam, which had been, within recent years, deposited thereon by those who took gravel from said pit, and was brittle, and possessed no strength whatever, and was wholly and entirely different from the soil and earth that is usually and commonly known to overlie gravel beds; that the defendant had on prior and divers times-the particular dates this plaintiff is unable to state-taken gravel from said pit, and knew, or could have known, of the unusual and dangerous condition of the same, had it made proper and careful examination thereof; that there was nothing in the general appearance of said pit to put plaintiff on his guard as to its usual and dangerous condition, and he had never been in said gravel pit before, and was there only about 20 minutes, in the discharge of his duty as aforesaid, when he was injured as aforesaid; that he had no knowledge whatever of the unsafe and dangerous condition of said gravel pit, and without fault upon his part, and without any warning from the defendant, or any one else, the said stratum of earth, by reason of and wholly on account of said unusual brittle and peculiar formation of the same, broke, cracked, and caved in, and, with a large quantity of said earth, fell upon plaintiff, and thereby injured him as aforesaid. And plaintiff further avers that the defendant negligently and carelessly failed to give plaintiff any notice whatever of the unsafe and dangerous condition of said gravel pit, although it then well knew he had no knowledge of the said condition of the same, and was not acquainted with the peculiar formation of the soil overlying said gravel stratum."

It is the duty of the master to furnish a reasonably safe place for his employés in which to prosecute the work assigned them to do, and to take proper precaution to guard against injuries to his employés. The employés have the right to repose confidence in the prudence and caution of their employer, and to assume that the place assigned them to work is reasonably safe from any hidden or undisclosed perils which are not open and obvious to their sense. It is also settled that when a servant enters upon an employment which is from its nature necessarily hazardous, he assumes all the usual risks and perils incident to the service. It is not controverted in this case but that the condition of the gravel pit was open alike to appellant and the officers and agents of appellee. The appellant alleges, it is true, that there was nothing in the general appearance of said pit to put him on his guard as to its unusual and dangerous condition, but there is nothing in the complaint to indicate that the overlying stratum, composed of a black, loose, and brittle loam, was not open and obvious to his senses.

The stratum of gravel stood perpendicularly six feet thick. The soil above prejected over this stratum one foot. It does not appear that either the character or condition of this overhanging stratum or soil was hidden or latent. When he went to shovel said gravel into his wagon, if he had exercised his sense of sight, he could have seen and observed the character and condition of the soil above. The action of the circuit court is in harmony with the decision of the supreme court. Swanson v. City of La Fayette (Ind. Sup.) 33 N. E. 1033; Griffin v. Railway Co., 124 Ind. 326, 24 N. E. 888; Water-Supply Co. v. White, 124 Ind. 376, 24 N. E. 747. Judgment affirmed.

ROBINSON v. TEETER et al. (Appellate Court of Indiana. Sept. 25, 1894.)

REPLEVIN-ACTION ON BOND-EVIDEnce.

1. In an action on a replevin bond, where it appears that the replevin suit was dismissed for want of jurisdiction, and the property returned to plaintiff, and there was no adjudication as to ownership, and there is evidence that plaintiff was not the owner of the property, a judgment for nominal damages will not be reversed.

2. In an action on a bond given in a replevin suit which was dismissed for want of jurisdiction, and without an adjudication as to the ownership of the property, evidence that plaintiff was not the owner is admissible in mitigation of damages.

Appeal from circuit court, White county; A. W. Reynolds, Judge.

Action by Aaron F. Robinson against John F. Teeter and others on a replevin bond. Judgment was rendered in favor of plaintiff for nominal damages, and he appeals. Affirmed.

Palmer & Spencer, for appellant. Sellers & Uhl, for appellees.

REINHARD, J. This is an action on a replevin bond, commenced before a justice of the peace by the appellant against the appellees. On appeal to the circuit court there was a trial by the court and a finding and judgment in favor of the appellant for one cent and the costs of suit. The appellant, not being satisfied with the amount of the recovery, filed his motion for a new trial, and, the same having been overruled, he appeals to this court.

The overruling of the motion for a new trial is the only error assigned, and the only question for our determination is whether the evidence is sufficient to support the finding and judgment. The facts, as disclosed by the record, are without material contradiction. On April 23, 1893, the appellee John F. Teeter instituted suit before a justice of the peace of Union township, in White county, Ind., for the recovery of a certain corn-planting machine alleged to be of the value of $40. his complaint in said action he filed a bond in the penalty of $80, with the appellee Biederwolf as surety, which is the bond declared up

With

on in this action. The justice issued his writ of replevin, and also a summons against the defendant in the action, and delivered the same to a constable, who took the property, and delivered it to Teeter. On the day fixed for the trial, Robinson appeared, and filed a plea in abatement showing that, at the time the complaint was filed and the writ issued, he (Robinson) was, and still is, a resident of Big Creek township, in White county, Ind.; that the property described in the complaint and taken from him and delivered to the plaintiff was not taken and delivered in Union township, where the suit was brought, and is now pending, but was taken and detained in Big Creek township until taken by the constable upon said writ of replevin; that at the time of the commencement of the suit there was, and ever since has been, a dulyqualified acting justice of the peace in said Big Creek township, who is fully competent to try the same. The justice of the peace, upon issue joined upon said plea and trial had, sustained the same, and entered the following order upon his docket: "May 27th, 1893. Come now the parties to the above action, and a trial was had, and, after hearing the cause presented according to law, the court sustains the plea in abatement of defendant, and dismisses this action for want of jurisdiction, at cost of plaintiff. It is therefore ordered and adjudged by the court that the defendant recover of and from the plain. tiff his cost in the above action, and that defendant have return of the property described in the complaint. B. F. Ross, J. P." There was evidence at the trial of the present action tending to show that the appellant was not the owner of the property described in the replevin bond, and that he sustained no special damages by reason of the writ. We think the finding and judgment for nominal damages only is sustained by the authorities. Hulman v. Benighof, 125 Ind. 481, 25 N. E. 549; Wiseman v. Lynn, 39 Ind. 250; Allis v. Nanson, 41 Ind. 154; Story v. O'Dea, 23 Ind. 326; Stockwell v. Byrne, 22 Ind. 6. It needs no argument to support the proposition that if the appellant was not the owner of the property replevied he could recover no damages for a failure to return it, for he can recover no more than compensation for actual loss, and then not exceeding the penalty of the bond. Keller v. Carr, 119 Ind. 127, 21 N. E. 463. It is otherwise, of course, where the title to the property has been adjudicated in the replevin suit. The judgment of the justice was not an adjudication of the title, even though it be conceded that the justice had the power to adjudge a return as upon a dismissal under the statute. Rev. St. 1894, § 1618 (Rev. St. 1881, § 1550). The judgment shows upon its face that there could have been no adjudication as to the ownership. While the bond is not void in such a case, and full compensation may be recovered thereon for actual loss sustained, the fact that the plaintiff was not the owner of the

1. Municipal corporations are liable in damages for the results of their negligence only in adopting defective plans for public improvements, and not for the results of an error in judgment.

2. Negligence will not be inferred as a matter of law from the fact that culverts are defective in plan, and become obstructed and filled up with dirt and sand.

Appeal from circuit court, Miami county; J. T. Cox, Judge.

James M. Brown brought suit against the city of Peru to recover damages resulting from the flooding of his lands by reason of defective culverts. From a judgment in his favor the city appealed. Reversed.

R. P. Effinger and Walker & McClintic, for appellant.

GAVIN, J. The appellee brought suit to recover damages resulting from the flooding of his lands by reason of defective culverts. There was a trial, and special verdict returned by the jury. The verdict is a peculiar one, contradictory in some of its features. It shows, however, that appellant's land was flooded by reason of a culvert's becoming filled up and obstructed. It is expressly found that "the whole amount of damage accruing to said Brown, under the matters stated in his complaint, was by reason of the defective plan of construction approved by him." Brown, the appellee, had been a member of the council and of the committee which recommended and adopted the plans for the improvement. The culvert complained of was across Grant street, in the city of Peru, at a point where it intersected the Boulevard; the former street being 66 feet wide, and the latter 70 feet wide. Upon the west side of Grant street, above the Boulevard, a gutter had been constructed, with a rapid fall, which emptied into a culvert which crossed the Boulevard, and intersected the culvert crossing Grant street, at an angle of about 73 degrees, at a point six or three feet (it is stated both ways) from the outlet of the Grant street culvert. The Grant street culvert, i. e. the one crossing Grant street at right angles, was two feet wide and three feet high. The dimensions of the other one are not given. The jury finds "that the plan of said drainage was defective in causing the intersection of said culverts at an angle so nearly a right angle that the earth, sand, gravel, and sediment carried into said culvert from the north was arrested and depos

ited in said culvert crossing Grant street, thereby obstructing the outlet of the same." This is the only defect in the plan of the drainage which we have been able to discover. The jury, in its special verdict, having declared this defective plan to have been the sole cause of the injury, so far as relates to the conduct of the appellant, we are called upon to determine whether the facts stated are sufficient to enable us to declare an actionable wrong to have been committed by appellant. The law must be regarded as settled in Indiana that municipal corporations are liable for the results of their negligence in adopting defective plans for public improvements. City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. 821, and cases there cited; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686; Rice v. City of Evansville, 108 Ind. 7, 9 N. E. 139; City of New Albany v. Ray, 3 Ind. App. 321, 29 N. E. 611. It is, however, equally well settled that if there is no negligence there is no liability, even though there be an error in judgment, and the plan be really defective. In Rice v. City of Evansville, supra, Elliott, J., says the controlling question is: "Was there negligence on the part of the municipal corporation in devising the plan of the sewer, or in carrying it into execution? For if there was no negligence there is no liability, although an error of judgment may have caused the corporate authorities to provide a plan for a sewer of inadequate capacity." In City of Terre Haute v. Hudnut, supra, the same judge says: "While our courts have always held that municipal corporations are liable for negligence in devising a plan, they have, from first to last, declared that there is no liability unless there is negligence."

Negligence in devising this plan being then absolutely essential to appellee's recovery, it is necessary to determine whether, upon the facts shown, we can declare negligence as a matter of law. The grade at which the culverts were placed is not given, nor the size of the entering culvert, nor the character of the gutter, and soil above it. What examination the city council made before adopting the plan, what consideration they gave, whether or not they consulted an engineer, do not appear, although it does appear that the work was done under the advice and with the full knowledge and consent of appellee, and upon the recommendation of the committeee on streets, of which he was a member. In the absence of knowledge upon all these points, we cannot infer negligence, as a matter of law, from the simple fact that these culverts were defective in plan, and became obstructed and filled up by the accumulations of dirt and sand. The council may have reasonably expected that the grade of these culverts was such that the current of water would be strong enough to wash them clean from all sediment which might be deposited so close to

the point of outlet. Evidently the appellee, the man most interested, might have thought so, or he would not have advised its construction in this maner. There might be cases where the means adopted were SO grossly and patently inadequate as to constitute negligence in themselves, but this is not such a case. Rice v. City of Evansville, supra.

The burden being upon appellee to establish by the special verdict every fact essential to his recovery,-Railway Co. v. Trimble (Ind. App. ) 35 N. E. 716; Kehr v. Hall, 117 Ind. 405, 20 N. E. 279,-we are constrained to hold that the court erred in ren

dering judgment in his favor. The judgment is reversed, with instructions to the trial court to enter judgment upon the special verdict in favor of appellant.

1. In a suit to recover on a note against the two joint makers, a cross complaint by one of them, alleging that a third party is in fact a joint debtor on the note, although his name does not appear thereon, and praying that such third person be made a party defendant, and that he be required to answer, is demurrable.

2. To make an answer sufficient, under Rev. St. 1894, § 278 (Rev. St. 1881, § 277), providing for the bringing of a new party into court at the instance of the defendant, in his answer, it must be shown that the party sought to be brought in, in a suit on a note, was a party to it.

3. Under Rev. St. 1894, § 273 (Rev. St. 1881, § 272), providing that when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be joined, a new party will not be made merely for the purpose of settling matters between him and the defendant.

4. Where a demurrer to an argumentative denial is sustained, and there is also a general denial, under which the same facts may be given in evidence, it is not error.

Appeal from circuit court, Decatur county; J. W. Study, Judge.

The Citizens' National Bank of Greensburgh, Ind., sued Thomas Heaton and Benjamin F. Lynch on a promissory note. Heaton filed a cross complaint, a demurrer to which was sustained, and he appealed. Affirmed.

John S. Scoby and Ira M. Sharp, for appellant. Bonner, Tackett & Bennett, for appellees.

REINHARD, J. The Citizens' National Bank of Greensburgh, Ind., sued the appellant, Thomas Heaton, and the appellee Lynch on a promissory note for $1,250, interest, and attorney's fees. Heaton appeared, and filed what is termed in the pleading a "cross complaint," averring that the note 1 Rehearing denied.

sued on was made for a loan of money by the bank to himself, Benjamin F. Lynch, and one Oliver Deem, and that said parties borrowed said money from said bank for their equal and joint use and benefit, and that they each equally owe and ought to pay the same, share and share alike, but that the name of said Deem is not upon said note as a maker thereof, he not being present at the time. He prayed that Deem be made a party to the action, for process against him, and that he be required to answer, and all proper relief. He further prayed that Lynch be made a party and required to answer. Subsequently Heaton filed a second paragraph of pleading, which he likewise denominates a "cross complaint," setting forth the facts more fully than in the first paragraph, and averring that the money for which the note was given was borrowed by said Heaton, Lynch, and Deem for their joint and equal use and benefit, for the payment of certain machinery used by them in partnership in the business of boring and constructing gas and oil wells; that Deem was not present. and did not personally sign said note, the bank being willing to make the loan on the credit of the names of said Heaton and Lynch; that the said three parties did not use any partnership or firm name in the transaction of their partnership business, but used their individual names, etc. There was a prayer that Lynch and Deem "be made defendants to this cross complaint, and that any judgment herein had on said note rendered be rendered equally, share and share alike, against said Heaton, Lynch, and Deem, and for all other proper relief." Lynch and Deem filed separate demurrers to each of these pleadings, the demurrers were sustained, and the appellant excepted. These rulings are assigned as errors.

A

As an Is the par

If the first paragraph of this pleading is sufficient to withstand the demurrer, it must be good either as an answer, a cross complaint, or a petition to make a new party. In order to be good as an answer, the averments of the pleading must constitute a bar to the matters averred in the complaint. mere glance at the pleading will disclose that it contains nothing in bar of the action. Indeed, it does not profess to do so. answer, it is clearly insufficient. agraph good as a cross complaint? A pleading filed by one defendant against one or more codefendants, and showing that he is entitled to relief against him or them, is a cross complaint. Browning v. Merritt, 61 Ind. 425; Wright v. Anderson, 117 Ind. 349. 20 N. E. 247. When such a pleading is filed by one defendant against one or more codefendants and another who is not a defendant, showing that the cross complainant is entitled to relief against such parties as to matters not apparent on the face of the complaint, it is necessary that such new party should be made a defendant, and process should issue against him. Swift v. Brum

field, 76 Ind. 472. Properly speaking, there is no such pleading known to our Code as a cross complaint. If the cross proceeding be against the plaintiff, and grew out of the matters averred in the complaint as constituting the cause of action, it is a counterclaim. But, notwithstanding the silence of our Code upon the subject of cross complaint, the chancery practice of determining the rights of the parties on each side of a case is clearly recognized by our decisions; and in such cases the rules of pleading and practice of chancery courts, as modified by the spirit of the Code, govern. Fletcher v. Holmes, 25 Ind. 458; Pom. Rem. §§ 806-80%; Bliss, Code Pl. § 390. Hence it has become the established practice of our courts that cross actions may be resorted to between parties on the same side of a case, and the pleading filed in instituting such cross action is known under our practice as a "cross complaint." While the mode of procedure is not prescribed by the Code, and the chancery practice is proper to be resorted to in such proceedings, the basis of the procedure is nevertheless found in the statute-1 Rev. St. 1894, § 577 (Rev. St. 1881, § 568)-which provides that the court "may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves." Under this provision it has been held that the power to determine a controversy between parties on the same side as between themselves is a discretionary one, and should not be exercised, to the detriment of the opposing party, by delaying his judg ment. Manning v. Gasharie, 27 Ind. 399. While this is the rule as applied to parties already in court, it is further true that the liberal provisions of our Code for making new parties defendant at the instance of one already a defendant may not be invoked when the controversy between such defendant and new party is purely between themselves, and could not affect the right of the plaintiff to recover. Fischer v. Holmes, 123 Ind. 525, 24 N. E. 377; Frear v. Bryan, 12 Ind. 343; Bennett v. Mattingly, 110 Ind. 200, 10 N. E. 299, and 11 N. E. 792.

In the present case it is quite apparent from the first paragraph of the pleading under consideration, we think, that there was no unity of interest between the plaintiff and Deem. The latter, according to the averments of this paragraph, was not a party to the contract between the bank and the makers of the note. It is true that it is alleged that the note was made for a loan of money by the bank to Heaton, Lynch, and Deem for their equal and joint use and benefit; but it is not shown that Deem was a maker of the note, or ever agreed to pay the same, or was in any way connected with its execution, but it is expressly averred that he was not present, and "is not upon said note as a maker thereof." What the arrangement may have been between Heaton, Lynch, and Deem cannot affect the bank, v.38N.E.no.8-15

unless Deem was in some way a party to the contract with it. It may be true that the loan was made to all three of the parties, and yet if the bank chose to accept the note of two of them, and these were willing to and did execute such note, we are unable to see upon what principle the bank could be compelled to pursue Deem for any portion of the money for which the note was given. How can Deem be made liable to pay any portion of a note, attorney's fee and interest included, when it is not shown that he ever executed it, and his name not only does not appear to it, but it is affirmatively shown that he had nothing to do with its execution? He may indeed be liable to the makers in a separate action, if it be shown that the money was obtained in part for his benefit, or used in an enterprise in which he was jointly interested with them. But this does not concern the plaintiff, and is a matter purely between the defendants and Deem. We do not think, therefore, that the court erred in sustaining the demurrer to the paragraph under consideration.

Nor was it sufficient as a petition to make a new party. By section 278, Rev. St. 1894 (section 277, Rev. St. 1881), it is provided that: "When it is necessary for the defendant to bring a new party before the court, he may state the matter relating thereto in his answer and demand relief; and thereupon a summons shall issue and other proceedings be had against him as if such matter had been exhibited in the original complaint." To make a petition or "answer," as it is denominated, sufficient under this section, two things must appear in its contents: It must be shown that the party sought to be brought in is a necessary party, and there must be a prayer for relief. Conklin v. Bowman, 11 Ind. 254. As both of these essential elements are absent, the paper, as a petition, is insufficient under the section referred to. Deem was not a necessary party, for he was not a party at all to the contract declared upon.

The appellant insists, however, that Deem should have been made a party under section 273, Rev. St. 1894 (section 272, Rev. St. 1881), which provides that, when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be joined as proper parties. It is sufficient to say in answer to this position that the controversy in litigation, i. e. the promissory note in suit, could be fully decided upon between the parties to the contract. The rule already stated, that a new party should not be made merely for the purpose of settling matters between him and the defendant or defendants, is fully applicable to this section. Frear v. Bryan. supra; Fischer v. Holmes, supra; Bennett v. Mattingly, supra. The appellant has an ample remedy against Deem, after payment of the judgment, by a suit for contribution. We think the first paragraph of this so-called