gently allowed and permitted by the appellees to so remain without lights or guards; that on that night the appellant was lawfully traveling on Union street, riding in a buggy, and carefully driving the horse attached thereto, when, without her knowledge or any fault on her part, the wheels of the buggy struck against the pile of timber so negligently left unguarded and without lights, by reason of which, and without fault on appellant's part, she was thrown and fell violently out upon the street, whereby she was greatly injured and her right ankle was broken; that before and at the time of the accident she had no knowledge of the obstruction, and she did not and could not see it; that the injury was received without any fault or negligence on her part, but wholly by reason of the negligence of the appellees, etc. The appellees having answered by general denial, the cause was tried by jury. The court instructed the jury to return their verdict in favor of the city and in favor of the appellee Perkins, and after deliberating the jury returned a verdict in favor of all the appellees.

In arguing the causes assigned in the appellant's motion for a new trial, her counsel, while claiming that the verdict was not sustained by sufficient evidence and that it was contrary to law, have not directed their discussion specially to these causes, but have placed stress upon the alleged error in directing verdict in favor of the city and appellee Perkins, and in excluding certain evidence which appellant offered by her witness Simon Becher. The city and the appellee Perkins have each furnished a brief, but no argument has been made before us on behalf of the appellee Swanger. It appears from the evidence that Perkins resided on the west side of Union street, immediately south of the cross-street named in the complaint, and a short distance from the south and the east boundaries of the city; there being no house between his and the southern corporate limits. The appellee Swanger, a contractor, had constructed a cement sidewalk for Perkins on the east, or Union street, side❘ of his property; the city not having ordered the making of the sidewalk, and neither Perkins nor Swanger having procured a permit from the city to make the sidewalk or to place tools or materials on the street. The work, having progressed for some days, was finished about 4 or 5 o'clock on Friday afternoon, August 25, 1899, when Swanger, who had furnished the materials, tools, and workmen, went away with his men, taking the tools, but left a number of boards and stakes, which had been used to bind the cement at the sides. Swanger asked permission of Perkins to leave these boards and stakes on his premises, but he refused, saying he would rather have the lumber outside the curb, because he wanted to grade his lawn. Swanger piled up the boards in the roadway, the pile being about 1 foot wide, 18 inches high,

and 16 feet long, extending north and south near the curb, and he threw the stakes at the south end of the pile of boards. These stakes made a pile extending into the roadway further than the boards, and about 32 feet from the curb, 8 to 12 inches high in the center, and 4 or 6 inches high at the outer end. The roadway at this point was 33 feet wide, smooth, and traveled. These materials so remained without lights or guards until the time of appellant's injury; the city having no actual notice of their presence there. The appellant, about 17 years of age, on Saturday evening, August 26, 1899, was riding southward on Union street, in a singleseated buggy, with two of her friends,—a young man and another young woman,—on their way to a party at the residence of appellant's aunt. The young man had been driving from South Bend to and through Mishawaka; but, a short distance before reaching the point in question, the appellee, who had been over the road before, while her companions had not previously traveled over this portion of their route, changed places with the young man, and took the lines, and was driving at a trot, when, at about half past 8 o'clock, and after dark, the right front wheel, without striking the pile of boards, passed over the outer end of the pile of stakes, and thereby the buggy was tipped toward the left, and the appellant was thrown or fell or jumped out on the left-hand side, and suffered the injury for which she sued.

Concerning the rejection of the offer to prove by the witness Becher that Perkins directed Swanger to pile the lumber in the street, it is sufficient to say that afterward, in the course of his examination, this witness testified fully as to all that he knew concerning what Perkins said on this subject; and for this reason it cannot be said that there was error which harmed appellant in this ruling.

Concerning the question whether the verdict was sustained by sufficient evidence, or was contrary to law, so far as the appellee Swanger is affected, as to whom the jury, after deliberating and without being directed to do so by the court, found in his favor, the state of the evidence is such that we would not be authorized to disturb the conclusion so reached upon deliberation by the jury. We may agree with the statement in appellant's brief that "whether the appellant was driving carefully, whether she was familiar with the way before the walk was constructed and the obstacle left in the roadway, whether she knew of the obstruction or had any reason to expect it, whether she saw it, whether she drove nearer the side of the roadway than was reasonably prudent, *** or whether the appellant had conducted herself as a reasonably prudent person would have done under the circumstances, were all, as we think, questions to be answered by the jury after hearing the evidence and the

instructions of the court." The evidence affecting the question as to contributory negligence was such that the question was within the province of the jury to decide, and we would not be justified in disturbing their finding thereon. As to the character and extent and location of the obstruction, there is no difference between the statements of the parties before us. Nor is there any question that the evidence shows without conflict that it was placed in the roadway and left there by Swanger without lights or guards during the period above stated, and that the only connection of Perkins with the obstruction was his suggestion, request, or direction to Swanger to place the materials in the street, and his knowledge of their presence there, unlighted and unguarded. He certainly, in any view, if liable at all, would be liable only as one who participated with Swanger in what he did, and there could be no reason for holding Perkins liable for damages if Swanger was not liable. In such a case, when the obstruction was not erected by the city, and it did not make any order or give any permission for its creation, and it had no actual notice of its existence, and its responsibility, if any, would arise from constructive notice inferred from the period of the duration, prior to the injury, of the obstruction created by a wrongdoer, and its location and character, and the apparent probability of injury therefrom, there could be no liability on the part of the city if there was none on the part of the person or persons who, acting voluntarily, created or caused the obstruction, and rendered it dangerous, as did Swanger in this case, or, as claimed by the appellant, Swanger and Perkins. The city could not properly be regarded as responsible in such a case, without liability on the part of Swanger, unless it were made to appear that it was not Swanger who caused the dangerous obstruction. This would be true notwithstanding evidence sufficiently proving constructive notice to the city. If, in such case, Swanger were relieved from liability because of contributory negligence of the injured person, the city would also be entitled to exemption from liability. The duty of a city to keep its streets in a condition safe for travel is not that of an insurer of their safety, but the city is bound to exercise reasonable diligence and care in the premises. It is bound only to keep the streets reasonably safe, and the question whether it has done so in a particular instance is ordinarily one for the jury. In determining this question, it is manifest that greater care and diligence are required in a large city than in a small town, and in the populous portion of a city or town than in the sparsely populated outskirts, for the degree of care must be proportioned to the degree of danger of injury to be apprehended. But we do not find it necessary to decide whether or not the evidence was such that the question as to constructive notice

to the city should have been left to the jury, or whether or not the evidence sufficiently indicated participation on the part of Perkins to make it proper to submit that question to the jury. In such case, where the municipal corporation is not itself a wrongdoer, but the plaintiff's injury has been caused by an obstruction made by a third person, and the liability of the city is dependent upon the existence of the obstruction so created, and sufficient notice thereof, actual or constructive, to the city before the injury, the city and such third person are not joint tort feasors, nor are they in pari delicto. When the municipality is sued alone for an injury thus incurred, for which it is liable by reason of such notice, it may impose the burden of the defense upon the actual wrongdoer, by giving him notice to defend; and, if he had such notice and could have defended the suit, he will be bound by the result of the action, and in a subsequent suit of the municipality against him for reimbursement he cannot dispute the material facts adjudicated in the former suit. He will be concluded as to the existence of the obstruction, and as to the liability of the city to the plaintiff in consequence thereof, and as to the amount of damages or injury it occasioned, though he will not be estopped from showing that he was under no obligation to keep the street in a safe condition, and that it was not through his fault that the injury happened. Catterlin v. City of Frankfort, 79 Ind. 547, 41 Am. Rep. 627; McNaughton v. City of Elkhart, 85 Ind. 384; City of Elkhart v. Wickwire, 87 Ind. 77; Wickwire v. Town of Angola, 4 Ind. App. 253, 30 N. E. 917. In the case before us, the actual creator of the obstruction, Swanger, and Perkins, the person at whose alleged direction the former caused it, and also the city, were parties defendant; and as between the plaintiff and each of them, and as between themselves, they, with the plaintiff, would be bound by the judgment. By their verdict in favor of Swanger, the jury found that the evidence did not establish some one or more facts necessary to sustain such an action against him. If the evidence were such as to establish without conflict the existence of the obstruction, and that it was caused by the appellee Swanger, and that he was responsible for its existence and its unguarded condition, and that it occasioned the injury, all as alleged in the complaint, yet, if they determined upon sufficient evidence that the appellant directly contributed to her injury by her own negligence, they were authorized to render their verdict in favor of Swanger. While in such an action against one person as personally responsible for the dangerous condition of the street, and against the city for its failure to perform its duty to keep the street in a reasonably safe condition, the evidence might, in a particular case, establish such a state of facts as would render the city liable for the injury, and exonerate

the third person by reason of a personal defense shown, on the other hand the evidence may, without conflict, show such a state of facts as would necessarily relieve the city unless the third person were liable. We could not properly reverse the judgment as to the city or Perkins without also reversing it as to Swanger. If the judgment be affirmed as to Swanger, it would conclude all the parties to the action on the question as to the responsibility of the alleged wrongdoer, who, without permission of the city, actually erected the obstruction, and there could be no recovery against the other parties defendant, or either of them. But as we have seen, we have no justifiable ground for reversing the judgment rendered in favor of Swanger. Therefore, whether or not the court erred in not submitting the cause, as against the city and Perkins, to the determination of the jury upon the evidence, yet as the jury, within their province, found in favor of Swanger upon their consideration of the evidence, the error, if any, was actually harmless. Featherson v. President, etc., of Newburgh & C. Turnpike Co. (Sup.) 24 N. Y. Supp. 603; Hill v. Bain, 15 R. I. 75, 23 Atl. 44, 2 Am. St. Rep. 873; Williams v. McGrade, 13 Minn. 46 (Gil. 39).

Judgment affirmed.

(30 Ind. App. 101)

KIBBEY V. RICHARDS. (Appellate Court of Indiana, Division No. 1. Nov. 25, 1902.)

EASEMENTS-PRIVATE RIGHT OF WAY-PERMISSIVE USE.

1. A license to use the land of another as a private way, without assertion of right in counection with the user, was revocable at the will of the owner, where no consideration was paid therefor, or any value parted with on the faith that the license was perpetual, and constituted no basis for a prescriptive easement.

Appeal from circuit court, Grant county; H. J. Paulus, Judge.

Action by Osmer Kibbey against Jacob Richards. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

John A. Kersey, for appellant. Foster Davis, for appellee.

ROBINSON, J.

Appellant, in his complaint, avers that he is the owner in fee and In possession of a certain described tract of land; that the same is all the land he owns, and that there is no public highway bordering thereon or coming thereto from any direction; that for more than 30 years there has been a private way running east from the southeast corner of appellant's land to a gravel road; that this way is, and for more than 30 years has been, 30 feet in width; that appellee is, and during all of his time has been, the owner of the land abutting on this way on the north side thereof, and his fence divid

1. See Easements, vol. 17, Cent. Dig. § 24.

ing it from his land during all this time has been 15 feet north of the center line thereof; and that he has at all times acquiesced in and recognized the right of appellant and his predecessors in the title to the ownership of such land to use this private way in its full width, and up to his fence, 15 feet north of the center of the way. It is further averred that on or about December, 1899, appellee moved his fence 13 feet south, and into this way, throughout its entire length, thereby destroying appellant's easement and way, and thereby cutting the plaintiff off from all ingress to and egress from his land, creating and constituting a nuisance, which is irreparably injurious to appellant, and thereby rendering his land of no value. A trial by jury resulted in a verdict in appellee's favor, upon which, over appellant's motion for a new trial, judgment was rendered. As stated in appellant's brief, "the issue was simply whether or not the road had been established and used as such long enough to constitute a road, and entitle the appellant to insist on its remaining." The only question argued is that the verdict is contrary to the evidence.

A person may acquire a private right of way over the lands of another by prescription. The use of the way must have been continuous, uninterrupted, and adverse, under a claim of right, and with the knowledge and acquiescence of the owner of the land. Such use must not at any time have been interrupted by the act of the owner of the land, nor abandoned by the party claiming the right. "If," said the court in Fankboner v. Corder, 127 Ind. 166, 26 N. E. 767, "there has been the use of an easement for twenty years, unexplained, it will be presumed to be under a claim of right, and adverse, and be sufficient to establish a title by prescription, and to authorize the presumption of a grant, unless contradicted or explained." If, on the facts pleaded, appellant had no more than a license to use the land of appellee, such license was revocable at the will of the person granting it, as it does not appear that any consideration was paid for it, or that any value was parted with on the faith that the license was perpetual. Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152; Clauser v. Jones, 100 Ind. 123; Malott v. Price, 109 Ind. 22, 9 N. E. 718; Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479. A landowner parts with none of his rights by simply permitting another to pass over his land. Permissive use is not sufficient to establish a prescriptive right. "The use of land," said the court in Parish v. Kaspare, 109 Ind. 586, 10 N. E. 109, “for the purpose of passing over it, is not inconsistent with the right of ownership, and where there is no inconsistency between the use and the ownership there can be no prescriptive right. It is not necessary, to establish a prescriptive easement, that there should be color of title; but it is necessary that the use should be under an assertion of right, and not simply a user under a naked license." See Hill v.

Hagaman, 84 Ind. 287. There is evidence to show that appellee first opened the way for his own convenience, and that it was originally intended and used for a way for stock to pass to and from the highway. The evidence shows no more than the permissive use of the way; that, when appellee was placing gravel on the way, appellant notified him, not to place any on his side of the lane, as he intended to move the fence and close it. We think it sufficiently appears from all the facts and circumstances proven that appellee always claimed the right to close the way, that appellant's use of the way was simply permissive, and that by such user appellee parted with none of his rights.

Uriah S. Jackson and Robt. L. Mason, for appellant. Robert Williamson and Marsh & Cook, for appellee.

WILEY, J. Appellee sued appellant upon an open account for services rendered. A demurrer to the complaint was overruled. Answer in two paragraphs, to the second of which a demurrer was sustained. Upon the issue joined by the general denial the cause proceeded to trial before a jury. At the conclusion of the appellee's evidence, appellant filed a written motion that the court instruct the jury to return a verdict in its favor. This motion was overruled. Appellant then introduced its evidence, the court instructed the

(30 Ind. App. 127)

CITY OF GREENFIELD ▼. JOHNSON. (Appellate Court of Indiana, Division No. 2. Nov. 25, 1902.)

ACTION AGAINST CITY-COMPLAINT-DEMURRER-APPEAL-ASSIGNMENTS OF ERROR

-BILL OF EXCEPTIONS.

1. Burns' Rev. St. 1901, § 342, subd. 5, provides that a defendant may demur to a complaint when it appears on the face thereof that it does not state facts constituting a cause of action. A complaint alleged that defendant city was indebted to plaintiff for services as a nurse rendered at the request of defendant, and a bill of particulars gave the items. Α demurrer alleged that "defendant demurs to plaintiff's complaint for the reason that it fails to state a cause of action against it, as it is a municipal corporation, and can only speak by resolution or ordinance." Held that, conceding the demurrer was on the ground that the complaint failed to state a cause of action, as the authority of defendant to employ plaintiff could have been presented on the trial, the demurrer was not well taken.

2. A failure to discuss errors relied on is a waiver.

3. The question whether the verdict is contrary to law and the evidence cannot be considered on appeal where the record does not affirmatively show that the evidence is all brought up.

4. Although a bill of exceptions states that it contains all the evidence, if it shows upon its face that it does not the court will not consider any question which depends for its proper decision upon the evidence.

5. Where a party introduces evidence on his own behalf after the court has ruled adversely to his motion that the court direct a verdict, he waives his right to have the ruling considered on appeal.

6. Where, on appeal, it appears that certain instructions were given on the court's own motion, and that they were excepted to, but it does not appear which party excepted, the instruction cannot be considered.

7. An assignment of error as to several instructions is of no avail if any are correct.

8. A motion for a new trial on account of excessive damages in an action on contract presents no question.

Appeal from circuit court, Hancock county; E. W. Felt, Judge.

Action by Mary E. Johnson against the city of Greenfield. From a judgment for plaintiff, defendant appeals. Affirmed.

7. See Appeal and Error, vol. 3, Cent. Dig. § 3035.

lee. Appellant's motion for a new trial was overruled. All the rulings adverse to appellant are assigned as error.

The complaint is as follows:

"The plaintiff complains of the defendant, and says that said defendant is indebted to said plaintiff in the sum of five hundred dollars for services as nurse rendered by said plaintiff at the request of said defendant, a bill of particulars of which copy is filed herewith, marked 'Exhibit A,' and made a part of this complaint."

The bill of particulars is as follows: The City of Greenfield to Mary E. Johnson, Dr. To 28 days and nights nursing smallpox patient, at $15.00 per day. To clothing destroyed by reason of being infected with said disease......

$420 00

20 00 $440 00

The demurrer to the complaint is in the following words: "Defendant demurs to plaintiff's complaint for the reason that it fails to state a cause of action against it, as it is a municipal corporation, and can only speak by resolution or ordinance." If it be conceded that the demurrer is a substantial compliance with subdivision 5, § 342, Burns' Rev. St. 1901 (and as to this we do not express any opinion), we think that it is not well taken. The complaint is in the usual and ordinary form recognized by the Code, and adhered to by the courts in a long line of decisions. As to appellant's authority to employ a nurse to care for a smallpox patient in case of an emergency, and to prevent the spread of a contagious disease, it could have been properly presented upon the trial,—and which appellant sought to present by its second paragraph of answer,--but it is not properly presented by the demurrer. The complaint states a cause of action, and the demurrer was properly overruled.

Appellant has not availed itself of its right to have considered and decided the question of the alleged error of the ruling of the court in sustaining the demurrer to the second paragraph of answer, for the reason its counsel have failed to discuss it. It is the uniform rule in this state that a failure to discuss errors relied upon is a waiver of such errors. Pruden v. Board, 156 Ind. 325, 58 N. E. 437,