and fireman in charge of said locomotive engine, all of said men were compelled to go, and did go, upon said engine, and to the tank thereof, for drinking water, while so at work; and on said day the plaintiff, by a ladder provided by the defendant, climbed upon said trestle, and went upon said locomotive engine and tank for the purpose of getting for himself a drink of water, which he did, and while he was in the act of returning to his work over the ladder, and just as he had left the tank of said engine, and while he was yet upon said trestle and in the act of leaving the same, and in the exercise of due care, the engineer and other servants of the defendant then in charge of said engine negligently, without any notice or warn. ing to the plaintiff, suddenly moved said locomotive engine, machinery, and pile driver backward against plaintiff, and by reason thereof he was pushed from the trestle, and thrown to the ground, etc. The trial of the cause resulted in a verdict and judgment thereon in favor of appellee for $275.

The first specification of errors question the sufficiency of the complaint; the second the sufficiency of the second paragraph of reply; the third, the action of the court in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict; the fourth, the overruling of appellant's motion for a new trial. It is urged against the complaint that it does not show a breach of any duty, either express or implied, owing by appellant to appellee; that there is no allegation of a special duty to furnish appellee with water; that such duty is not implied, and that it is only alleged by inference that appellant undertook to furnish water to appellee; that appellee's going upon the trestle for water was for his personal convenience only, and was not upon the invitation of appellant; that it is not alleged that the persons in charge of the engine knew that appellee was on the trestle, or that he gave any notice that he had left his place below, and had gone on the engine. Conceding that the complaint contains certain averments only by inference, and that allegations by inference are not sufficient, still there are facts alleged sufficient to show that appellee was not a trespasser; that he was injured in the exercise of due care on his part, by the negligence of appellant's servants. These averments make it sufficient to withstand demurrer for want of facts. The second paragraph of reply was addressed to the second paragraph of answer. Said paragraph of answer sets up the fact that the engine which caused plaintiff's hurt was not a "locomotive engine," but was part of the machinery of a "pile driver." Said paragraph of reply alleged that the locomotive engine described in the complaint was an engine constructed, used, and operated for the purpose of propelling itself along the rails of the railroad described in the complaint, and of hauling 65 N.E.-39

upon and along said rails freight cars and other cars, and at the time and before said accident had been used for such purpose. Said paragraph of answer and reply were argumentative, and a general denial was filed to each. The facts alleged in them were provable under the general denial. This action of the court, if erroneous, was harmless. It is claimed that the answers to interrogatories 2 and 4, returned by the jury, are inconsistent with the general verdict. Interrogatory 2 is as follows: "Did the engineer or other person in charge of the engine which caused plaintiff's hurt know that the plaintiff, at the time that he received his injury, had left his place of duty on the ground, and was on the trestle, or the tender of the engine? Answer. No." Interrogatory 4 is as follows: "At the time the plaintiff left his place of duty below the trestle, and went upon the trestle and tender of the engine on the occasion when he received his injury complained of, did he notify the engineer or other person in charge of the engine which caused the hurt complained of that he was on the tender or on the trestle? Answer. No." It is urged that the answer to interrogatory 2 found that appellant was not negligent; that the answer to interrogatory 4 found that appellee was guilty of contributory negligence; and that, as the general verdict finds that appellant was negligent, and appellee free from contributory negligence, they are inconsistent therewith. The general verdict is only overthrown by the answers to interrogatories when there is an irreconcilable conflict between them. The answer to the second interrogatory finds that there was no knowledge. It does not show that by the exercise of ordinary, or even slight care, defendant might not have had knowledge of appellee's presence. The fact that the appellee did not notify the engineer, as found in answer to interrogatory 4, that he was on the trestle, would not be conclusive of his contributory negligence, but would be a fact to be considered by the jury, in connection with all the circumstances, in determining the question of contributory negligence. In this connection it is claimed that, as the court instructed the jury that, if they should find the facts set out in said answers to interrogatories 2 and 4, they should find for defendant; that the instructions given by the court are the law of the case, and that these answers are, therefore, in irreconcilable conflict with the general verdict. Instructions given are the law of the case for the jury. If they return a verdict in disregard of them, it is within the discretion of the court to set it aside. They do not bind an appellate court. It is further claimed that the answers taken together are in utter conflict with the general verdict. The record does not support the claim. There was no error in overruling appellant's motion for judgment.

In support of the motion for a new trial

appellant contends that the evidence does not support the verdict. We find that the material averments of the complaint are supported by the evidence. There is evidence that the men in the employ of the appellant, including appellee, were in the habit of getting their drinking water from the tank on the engine. There is evidence from which the jury might reasonably conclude that the engineer had knowledge of this fact. Appellee did not cease to be a servant of the appellant, nor was he out of the line of his duty, when, for a few minutes, he quit actual work to satisfy a natural desire for a drink of water. He was not a trespasser, nor a mere licensee. He was not upon the premises merely for his own pleasure or convenience. The contract between him and the appellant corporation made it the duty of the latter to exercise reasonable care for his safety. But if the habit of procuring water from the tank for drinking purposes was founded upon a mere permission or license, yet, if the engineer knew, or had reason to believe, that appellee would avail himself of that license, he would be at fault if he augmented the danger of the situation without giving warning. Ellsworth v. Meheney, 104 Fed. 119, 44 C. C. A. 484; Lumber Co. v. Duggan (Ill.) 54 N. E. 1002. There is evidence that it had been the custom of the engineer to give warning of the movement of the engine; that upon the occurrence of the accident this warning was not given. There was evidence from which the jury might fairly have concluded that the omission of this warning resulted in appellee's injury. Whether the engineer. was guilty of negli gence or the appellee guilty of contributory negligence was for the jury to decide under all the circumstances proven.

It is earnestly contended that there can be no recovery, because the engine was not a locomotive engine within the meaning of the statute. A locomotive engine has been defined as one that moves cars by its own backward and forward motion. Stranahan v. Railway Co., 84 N. Y. 314. The Century Dictionary gives this definition: "A steam engine, which travels on wheels turned by its own power; specifically, an engine designed and adapted to travel on a railway." The machine in question possessed, by the evidence, all the characteristics of a locomotive engine. It moved forward and backward, by its own steam, along the track of a railroad. It had not the weight, size, power, nor speed of the locomotive engine ordinarily used in the drawing and operating of railroad trains, but it was capable of and did the same work to a less extent. In addition to moving itself and cars, it was used for the purpose of driving piles. The solution of the question must depend largely upon the construction given the statute. In Massachusetts it has been decided that it should be liberally construed in favor of the employés. As to the Massachusetts decision, Reno, in

Employers' Liability Acts, p. 2, says: "The main purpose of the act, as its title indicates, is to extend the liability of employers, and to render them liable in damages for certain classes of personal injuries to their employés for which they were not liable at common law prior to the passage of the act. It does not attempt to codify the whole law upon the subject, nor to restrict the employers' right of action to the cases mentioned in the act." In Alabama the act has not been so liberally construed. Id. p. 3. With respect to the English act of 1880, the rule of construction has been stated by Brett, M. R., in Gibbs v. Railway Co., 12 Q. B. Div. 208, 211: "This act of parliament having been passed for the benefit of workmen, I think it to be the duty of the court not to construe it strictly as against the workmen, but in furtherance of the benefit which it was intended by parliament should be given to them, and therefore as largely as reason enables one to construe it in their favor, and for the furtherance of the act." The purpose of the legislature in enacting the law was to remove what was regarded as an evil. The purpose was to protect employés from the negligent movement of engines along the tracks of railways. Prior to its passage the injured parties were without legal remedy because those in charge of the engines were fellow servants. The legislature will be presumed to have had in mind not details in the construction of the engine, but a machine of the same general character, effecting practically the same results, used in the same way, and subjecting the employés to the same dangers. Murphy v. Wilson, 52 Law J. Q. B. 524, cited by appellants, does not, with sufficient particularity, describe the engine there involved to give it controlling weight in the case at bar. In Perry v. Railroad Co., 164 Mass. 296, 41 N. E. 289, also cited by appellant, the court holds that a locomotive engine which is stalled in the roundhouse for repairs is not upon a railroad within the meaning of the employers' liability act of 1887. If the holding is sound, it is not decisive of the case before us. Other cases cited were not inconsistent with the conclusion here reached. We find no error for which the judgment should be reversed. Judgment affirmed.

(30 Ind. App. 154)

MCBRIDE v. ULMER. (Appellate Court of Indiana, Division No. 1. Dec. 12, 1902.)

LIMITATIONS-PARTIAL PAYMENTS—ACKNOWL-
EDGMENTS-NEW PROMISES-PLEAD-
ING LIMITATIONS.

1. Burns' Rev. St. 1901, § 2479, relative to claims against decedents' estates, provides that, when a claim is transferred for trial, it shall not be necessary for the executor to plead any matter by way of answer, except as set-off

1. See Executors and Administrators, vol. 22, Cent. Dig. § 1827.

or counterclaim. Held that, on the trial of a claim against a decedent's estate, it was not necessary for the executor to plead the defense of limitations.

2. A claim was made against a decedent's estate for money loaned to him by the claimant, his daughter. There was a credit, "By cash allowance of rent made October 1, 1899." There was evidence that in September, 1899, claimant's husband had asked decedent for the money due claimant, and that decedent had stated that he would allow a certain amount of rent due him from the husband. The claimant was not present, and there was no evidence that her husband was authorized to accept any payment, or that he ever paid any money to claimant. Held, that no payment was shown, so as to preclude the running of limitations against the claim.

3. Under Burns' Rev. St. 1901, § 302, which provides that no acknowledgment or promise shall be evidence of a new or continuing contract, so as to take a case out of the statute of limitations, unless the same be contained in some writing signed by the party to be charged, statements made by a debtor in conversation with third parties at times other than that at which he made an alleged partial payment on the debt could not of themselves constitute promises to pay or acknowledgments, so as to preclude the running of limitations, and, if available at all, could be valuable only as admissions to show the intention of the debtor at the time the payment was made.

Appeal from circuit court, Wells county; E. C. Vaughn, Judge.

Claim by Sarah M. Ulmer against William W. McBride, as executor of the will of Jacob Stroup, deceased. From a judgment in favor of claimant, the executor appeals. Reversed.

Dailey, Simmons & Dailey, for appellant. W. H. Eichhone and M. W. Walbert, for appeliee.

BLACK, P. J. The claim of the appellee, Sarah M. Ulmer, against the appellant, as executor of the last will and testament of Jacob Stroup, deceased, was for money received by the deceased in his lifetime, in February, 1876, from the claimant, which he then promised to pay her, in the sum of $500, and for interest thereon at 6 per cent. per annum until October 1, 1899, in the sum of $707.50; the total amount of principal and interest to that date being $1,207.50, with a credit, "By cash allowance of rent made October 1, 1899;" the claim being for the balance, with interest thereon from that date; the proceedings upon the claim being commenced January 23, 1901; the testator having died in December, 1900. Upon trial by jury, there was a verdict in favor of the claimant for $952.66, for which sum, the appellant's motion for a new trial having been overruled, judgment was rendered in favor of appellee.

The defense of the statute of limitations was available on the trial without being pleaded by the executor. Section 2479, Burns' Rev. St. 1901; Zeller v. Griffith, 89 Ind. 80; Pence v. Young, 22 Ind. App. 427, 53 N. E. 1060. Among the provisions of our Civil Code relating to the limitation of ac

tions, it is enacted that no acknowledgment or promise shall be evidence of a new or continuing contract, whereby to take the case out of the operation of the provisions of the statute, unless the same be contained in some writing signed by the party to be charged thereby. Section 302, Burns' Rev. St. 1901. It is also provided (section 304, Burns' Rev. St. 1901), "Nothing contained in the preceding sections shall take away or lessen the effect of any payment made by any person," etc. Evidence which was introduced of statements of the debtor at various times, whatever the purpose of the introduction thereof, could not establish an acknowledgment or promise as evidence of a new or continuing contract, in the sense of section 302, supra; such statements being not in writing, but oral expressions in conversations. It was sought to take the case out of the operation of the statute by evidence relating to the alleged part payment credited in the statement of claim. The existence of the indebtedness of the testator to the appellee, contracted, without writing, in 1876, was sufficiently proved. The evidence showed that in September, 1899, the testator, father of the appellee, visited the farm, which he owned, on which the appellee and her family, including her husband, resided; that on that occasion there was a conversation between the testator and the appellee's husband near a corncrib on the farm, no other person being present, except a lad,-Irvin Ulmer, son of the appellee. Concerning this conversation, Irvin Ulmer testified, his father, the husband of appellee, asked the testator "for money,-for a part of ma's money; and he told him that he would allow her $250, which is rent, on her money, to help to buy the place on which we live now." He also testified that his father at that time was looking after a farm, and that the family moved January 12, 1900, from the farm where this conversation took place. He further testified on cross-examination that the testator allowed the appellee's husband a credit of $250, rent which he owed to the testator, on what the testator owed the appellee, and that the testator said he would allow her rent; that he would allow her on what he owed her $250 rent that the appellee's husband owed to the testator. This witness also testified that on November 14, 1899, his father bought what was known as the "Shoemaker Land." A deed of conveyance for 40 acres of land in Wells county from Jane Shoemaker and Warren K. Shoemaker to Margaret Ulmer, for the expressed consideration of $1,200, dated November 13, 1899, was introduced in evidence. "Margaret" was one of the Christian names of the appellee. Anna Worth, a sister of the appellee, testified that in June, 1900, she had a conversation with the testator,-no other person being present,-in which he said, “Anna, did you know Mag had bought a place?" and the witness said, "I heard so," and the tes

I

tator said, "I gave her $250 on her $500." John Ulmer, a brother of the appellee's husband, Philip Ulmer, testified that in 1899, while riding with the testator in a buggy, they had a conversation in which witness said he understood that Philip bought him a farm, and the testator said, "Yes; he has." The witness said that he did not know that Philip was able to buy a farm yet, and the testator said: "Yes; I helped him some. allowed him the rent on this farm down here where Philip lived, of $250, towards what I owed Mag, to pay on that." Part payment does not create a new debt, but it revives the old one; and the action is properly brought, as here, upon the original debt. The principle upon which a part payment takes a case out of the statute is that it admits a greater debt to be due at the time of the part payment. Parke, B., in Tippets v. Heane, 1 Cromp., M. & R. 252; Conwell v. Buchanan, 7 Blackf. 537. Words not written and signed cannot constitute a sufficient admission; but the act of payment in part, with its illustrative circumstances, including accompanying words, evidences the admission. The admission of continued indebtedness may be inferred as a matter of fact, and not of law, from the fact of part payment. Mozingo v. Ross, 150 Ind. 688, 50 N. E. 867, 41 L. R. A. 612, 65 Am. St. Rep. 387; Ketcham v. Hill, 42 Ind. 64. "In order to make a money payment a part payment, within the statute, it must be shown to be a payment of a portion of an admitted debt, and paid to and accepted by the creditor as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment of more being due, from which a promise may be inferred to pay the remainder." Wood, Lim. 97. The payment must be made to the creditor, or to some one lawfully acting in behalf of the creditor. Kisler v. Sanders, 40 Ind. 78-83. If the creditor receive anything of value upon agreement between him and the debtor that its transfer shall reduce the debt, this will be a sufficient part payment to take the debt out of the statute. But there must be some transaction between the parties, such that the facts thereof would be available to establish on behalf of the debtor a defense of part payment in a subsequent action brought by the creditor for the recovery of the entire debt. If, by agreement, money is paid by a debtor, on behalf of the creditor, to a third person, this may be sufficient part payment as between the debtor and the creditor. Worthington v. Grimsditch, 7 Q. B. 479. It would seem, if, by agreement between the debtor and the creditor, by way of reducing the amount of the debt, the former releases a smaller debt due him from a third person, this might operate as a part payment, within the rule, and take the debt out of the statute. When the payment is made to a third person without authority to receive it, if the creditor ratifies it it will operate to remove the bar of the

statute. But a mere delivery of money to a third person, to be paid over to the creditor on the debt, is not, alone, sufficient. Wood, Lim. 103; Banking Co. v. Smith [1892] 1 Q. B. 765. If money was paid to or for appellee by her husband, such payment would not take the case out of the statute, unless it was paid by him on behalf of the testator, as his agent, and on account of the testator's indebtedness to the appellee. Harding v. Edgecumbe, 28 Law J. Exch. 313. The appellee's chose in action was her separate property, as if she were sole, under our statute. Statements of the debtor at times other than that at which he made the partial payment could not of themselves constitute promises or acknowledgments. If a promise or acknowledgment to a stranger may be available, sufficient to revive the debt, these statements, not being in writing signed by the debtor, as the statute requires, could be valuable only as admissions to show the intention of the debtor himself at the time he made the payment. See Brudi v. Trentman, 16 Ind. App. 512, 44 N. E. 932. A payment must be proved as a fact. Evidence of the debtor's mere parol statement of the making by him of a payment is not alone sufficient. That would leave the revival of the debt, otherwise barred, to rest wholly on evidence of words. On the occasion, shown in the evidence, when the subject of the alleged part payment was mentioned, the appellee was not present in person; nor was she represented by any person shown to have authority to contract on ber behalf in relation to that subject. The alleged part payment purported to be but a proposed remission of an indebtedness of her husband to the testator for rent, the existence of which indebtedness, and the amount thereof, were not otherwise proved. By such offered remission the testator proposed to relieve himself of a part of his debt to the appellee. It was not shown that his proposal was accepted by the appellee, or by any person representing her, or claiming to represent her, or acting in her behalf. It was not proved that his proposal was acted upon. A witness testified that appellee's husband was already at that time looking for a place, and that he afterward bought a farm, and certain land was soon after conveyed to the appellee by the Shoemakers. It was not shown that the appellee's husband paid or promised to pay any part of the purchase money as and for part payment of the testator's debt. Nor was it shown how or by whom the land was paid for. It was not shown that the proposal of the testator was communicated to the appellee before or in connection with the purchase or conveyance of the land. She gave a credit in her statement of claim, but she could not, by the giving of credit alone, remove the bar of the statute. Elliott v. Mills, 10 Ind. 368. There was no agreement between the testator and the appellee or her agent concerning the matter of part payment. If it could be said that