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(66 Ind. App. 521)

HOTTEL, J. This is an appeal from a ROOKER et al. v. LAKE FRIE & W. R. CO. judgment rendered against appellants, Wilet al. (No. 9438.) *

liam V. and Dora E. Rooker, in an action (Appellate Court of Indiana, Division No. 1. brought by them against appellees to recover Feb. 2, 1917.)

damages for trespass upon their lands. The

issues of fact were tendered by a complaint 1. MASTER AND SERVANT 315-INDEPENDENT CONTRACTOR—LIABILITY.

in one paragraph and a general denial. The Ordinarily, an employer is not responsible complaint alleges, in substance, that, during for an independent contractor's acts, provided the years 1913 and 1914, the appellees, in he reserved no control over such acts, except constructing a subway separating the grades the right to see that a particular standard was attained.

of the Lake Erie & Western Railroad Com[Ed. Note.-For other cases, see Master and pany and the traveled way of the Indian. Servant, Cent. Dig. $§ 1241, 1244–1253, 1255, apolis and Noblesville turnpike, a public 1256; Dec. Dig. 315.)

highway, at a point one mile south of the 2. RAILROADS ww18_CONTRACTS-VALIDITY. city of Noblesville, in disregard of appel

A railroad cannot by contract relieve it lants' rights, entered upon their lands, and self from public duties imposed by its charter, used and occupied the same for one year without the state's consent.

[Ed. Note. For other cases, see Railroads, and removed gravel, earth, and other subCent. Dig. 88 39–44: Dec. Dig. 18.] stance therefrom and piled thereon waste 3. MASTER AND SERVANT 315—INDEPEND

gravel, earth, and material, and left and ENT CONTRACTOR-TRESPASS — LIABILITY OF abandoned the same on said premises, to ap RAILROAD.

pellants' damages in the sum of $150, pay. A railroad, owing po charter duty to the ment for which has been demanded and regeneral public to refrain from trespassing on plaintiffs' land during a grade separation, may

fused. avail itself of the defense that an independent Appellants' motion for new trial was overcontractor did the trespassing.

ruled, and this ruling is assigned as error [Ed. Note. For other cases, see Master and in this court and relied on for reversal. Servant, Cent. Dig. $8 1241, 1244–1253, 1255, Said motion contains three grounds, the last 1256; Dec. Dig. 315.) 4. NEW TRIAL O112-JOINT MOTION.

two of which, respectively, challenge the Overruling a joint motion for new trial, to decision of the court as not being sustained be available, must have been erroneous as to all by the evidence and as being contrary to joining therein, and the movers must have been law. The same questions are presented by entitled to a new trial as to all against whom each of said grounds, and a disposition of they asked it.

[Ed. Note.For other cases, see New Trial, them will dispose of the appeal. Appellants Cent. Dig. 8 233; Dec. Dig.'m112.]

concede that there is no material conflict in 5. RAILROADS m114(1)–CONSTRUCTION IN the evidence. JURIES-PARTIES DEFENDANT.

The facts which gave rise to the litigation, Under Acts 1913, c. 182, requiring the board as stated by appellants in their original brief, of county commissioners to be served in certain

are as follows: railroad grade separation proceedings before the Public Service Commission, the board is not a

“The Public Service Commission of Indiana necessary party defendant in an action against made an order in a cause pending before it: (1) a railroad for damaging land while separating For the abatement of a grade crossing, and (2) zrades pursuant to the commission's order. the construction of a subway at a point one [Ed. Note.-For other cases, see Railroads, mile south of Noblesville, where the tracks of

the Lake Erie & Western Railroad Company Cent. Dig. $ 368; Dec. Dig. Omw114(1).]

cross the Noblesville and Indianapolis turn6. COUNTIES m146—CONSTRUCTION WORK-pike, sometimes called the Allisonville road. LIABILITY.

Plans for the work, including drawings and specA county is not liable because its commis- ifications, were prepared by the railroad comsioners consented to a railroad's independent pany and adopted by the commission. The work contractor trespassing on plaintiffs' land during was ordered to be performed by the railroad grade separation work.

company, and the cost was apportioned between [Ed. Note.-For other

see Counties, it and Hamilton county. The railroad sublet Cent. Dig. $ 212; Dec. Dig. Om 146.]

a. part of the labor, retaining to itself the fur7. TRESPASS Omw43(4)_VARIANCE.

nishing of all material and the performance of Under a complaint that defendants in sep- certain skilled work. In the process of destroyarating a railroad grade trespassed on plaintiffs' ing the 'old' crossing and constructing the 'newi land, there can be no recovery if the land was subway, entry was made upon appellants' lands.

which were used for stabling teams, for storage in fact a public highway.

of materials, for construction purposes, a boat. [Ed. Note.-For other cases, see Trespass, house thereon was wrecked for kindling, gravel Cent. Dig. 88 108-111; Dec. Dig. Om43(4).]

was taken for construction purposes, and a mass

of waste earth and debris containing some 1,000 Appeal from Circuit Court, Hamilton or 1,200 cubic yards was piled upon the premises County; James M. Punis, Special Judge. and abandoned there." Action by William V. Rooker and Dora E.

The questions involved, and determined Rooker against the Lake Erie & Western Rail- against appellants by the lower court, and road Company and others. Judgment for de here sought to be reviewed as stated by apfendants, and plaintiffs appeal. Affirmed.

pellants' original brief, are, in substance, as W. V. Rooker, of Indianapolis, for appellants. follows: (1) Whether the powers of the PubJohn B. Cockrum, of Indianapolis, and Shirts & Fertig and Phil J. Fariss, all of Noblesville, lic Service Commission with respect to for appellees.

grade. crossings are sufficient to accomplish Como For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


the vacation of a public highway without , tention, but, in any event, the conclusion the aid of ancillary proceedings in some which we have reached affecting the second other tribunal. (2) Whether either the ap- question, supra, makes it unnecessary to conpellee railroad company or the board of com- sider the first. The construction of the missioners could, “by resorting to the prin- subway in question was let to another con. ciple of independent contractor, absolve it-tractor. The work was one which appelself from liability for its duties with re- lees, or either of them, might legally let to spect to public highway crossings.”

such contractor. The trespass for which It is contended by appellants that the trial appellants seek damages was committed by court was of the opinion:

those in charge of such work, and the dam"(1) That the acts complained of were the age sought to be recovered is for a trespass acts of an independent contractor for which nei- on appellants' land—a thing wholly unnecesther the railroad company nor the county are responsible; (2) that the dirt being wasted large- sary to the performance of such work. ly upon the old road,' it was not wasted upon (1) Generally speaking, the contractee “is the lands of the appellants in the absence of a not responsible for the acts of an independshowing that the old road, though it was en- ent contractor, to whom he has let a particutirely wiped out and destroyed, was not formallg 'vacated in a proceeding for that purpose ; lar work or job, where he reserves to him(3) that 'abandonment of a public highway was self no control over the same, except the not sufficient to perform the office of vacation' right to see that it conforms to a particular of a highway; and (4) that the authority of the Public Service Commission in effacing danger

standard. Staldter V. City of Huntington ous grade crossings of railroads and highways (1899) 153 Ind. 354, 362, 55 N. E. 88; Wabash, was not sufficient to admit the destroyed high etc., R. Co. v. Farver, 111 Ind. 195, 12 N. E. way to revert to the abutting lands in the ab296, 60 Am. Rep. 696; City of Bloomington sence of a special ancillary proceeding for that purpose as provided by law for highway vaca V. Wilson, 14 Ind. App. 476, 43 N. E. 37; tions generally."

Vincennes Water Supply Co. v. White, 124 Appellants insist that this view of the Ind. 376, 24 N. E. 747; St. Louis, etc., Ry. law, so taken by the trial court, was er- | Co. v. Gilliban, 77 Ark. 551, 92 S. W. 793; roneous, because: (1) A highway being only Waltemeyer v. Wisconsin, etc., R. Co., 71 an easement, or right to travel, an abandon- Iowa, 626, 33 N. W. 140; New Orleans, etc., ment, when complete, effected a reverter of R. Co. v. Reese, 61 Miss. 581; Louisville, the part abandoned, and that formal pro etc., R. Co. v. Wiggington, 156 Ky. 400, 161 ceedings to vacate were unnecessary, that S. W. 209; Runians v. Keller, etc., Co., 141 the Public Service Commission was, in any Ky. 827, 133 S. W. 960; King v. New York, event, clothed with ample power to vacate etc., R. Co., 66 N. Y. 181, 23 Am. Rep. 37; in such cases, and that the consummation Marion Shoe Co. v. Eppley, 181 Ind. 219, of its order separating the grades and locat- 104 N. E. 65, Ann. Cas. 1916D, 220; Am. & ing and defining the subway was, in effect, Eng. Ency. Law (1st Ed.) pp. 837-840. a vacation of the former grade crossing, in However, it is insisted by appellants, in so far as the subway departed from such effect, that the doctrine of independent conoriginal grade crossing. (2) That the duty tractor has no application in this case, beof a railroad company to make all necessary cause the work which was here attempted provisions with respect to highway crossings to be turned over to such contractor was a is a charter duty imposed by the General work which the law required appellees to Assembly in the exercise of the police power perform, and that the duties and obligations of the state, and is therefore such a duty as connected therewith were implied covenants is not susceptible of delegation by the rails of the railroad company's charter, which road company to an independent contractor. such company could not lay aside or cast up

As preliminary to a disposition of these on the shoulders of another. questions, it should be stated that this ap [2] The general proposition involved in peal was taken to the Supreme Court, and appellants' contention is correct; that is to the transcript of the record was filed in say, a railroad company cannot, by any form that court; that, since the filing of appel- of contract, relieve itself from a duty to the lants' original briefs, appellees filed their public, imposed by its charter, without the petition asking the transfer of said cause consent of the state. Southern Indiana R. to this court, under section 1397, Burns 1914. Co. v. McCarrell, 163 Ind. 469, 473, 71 N. E. This petition was granted and the case 156; Braslin v. Somerville Horse, etc., Co., transferred to this court. It is now insisted 145 Mass. 64, 67, 13 N. E. 65, and cases citby appellants that the Supreme Court has ed; Chicago, etc., Co. v. McCarthy, 20 Ill. exclusive jurisdiction in all cases concerning 385, 71 Am. Dec. 285; Indianapolis, etc., Co. highways, and that appellees, by filing said v. Sample, 58 Ind. App. 461, 108 N. E. 400, petition to transfer, in effect conceded that 405, and cases there cited. no highway question was involved, and hence (3) Appellants' action, however, is not one that the land on which the trespass involved for a negligent omission of a duty owed by was committed is appellants' land, and that said company to the public generally, and on they have therefore waived the first question account of which appellants suffered special above suggested.

or peculiar damages; but their action is We think appellant is in error in this con- predicated on a tort committed on their own

lands. In such case, the principle for which thereto, as expressed in the decision of both they contend, involving the violation of du-, the Supreme Court and this court, and we ties imposed by charter, has no application. are unable to see upon what theory, under St. Louis, etc., Co. v. Gillihan, 77 Ark. 551, the evidence, there could have been any 92 S. W. 793; Waltemeyer v. Wisconsin, judgment against the appellee board of cometc., Co., supra; New Orleans, etc., Co. v. missioners. Reese, supra; Louisville, etc., Co. v. Wig. It seems to be appellants' theory that, begington, supra; Runians v. Keller, etc., Co., cause the statute makes such board a necessupra; King v. New York, etc., Co., supra; sary party before the Public Service ComWabash, etc., Co. v. Farver, supra; City of mission, in a proceeding to separate the Bloomington v. Wilson, supra; Vincennes grades, and because it provides that oneWater Supply Co. v. White, supra; Staldter fourth of the cost of such separation shall v. City of Huntington, supra; Stephenville, be borne by the county, such board was a etc., Co. v. Couch, 56 Tex. Civ. App. 336, 121 necessary defendant to this action, and hence S. W. 189; Sanford v. Pawtucket, etc., Co., had to be joined in the motion for new trial. 19 R. I. 537, 35 Atl. 67, 33 L. R. A. 564;/ See Act of March 11, 1913 (Acts 1913, p. 508). Boyd v. Chicago, etc., Co., 217 Ill. 332, 75 (5-7) We cannot agree with this contenN. E. 496, 108 Am. St. Rep. 253; McCafferty tion. In the instant case, the undisputed eviv. Spuyten, etc., Co., 61 N. Y. 178, 19 Am. dence shows that said board of commissionRep. 267; Indianapolis, etc., Co. v. Sample, ers had nothing to do with the work of consupra, and cases there cited; 24 Cyc. 1564, structing said subway, or the separating of 1565.

said grades, except that it was asked to It is further insisted by appellants, and make an appropriation of $2,775, as the part with good reason, that, under the contract Hamilton county was to pay therefor. It entered into between the railroad company

made this appropriation, and the railroad and the contractor, to whom it sublet said company undertook or agreed to construct work, the railroad company retained such the subway, and make the separation of supervision and control over the work that grades. The railroad company, by a contract it is not relieved by such contract from re- to which said board was not a party, sublet sponsibility for damages resulting from the the work to an independent contractor. The

only other evidence, in any way connecting trespass on which appellants' action is based.

such board of commissioners with said work,

was evidence to the effect that the members The theory upon which the contractee is of such board were on one occasion called relieved from liability, in such cases, is that down to said work, and, while there, some by his contract he has surrendered the su

one in charge of the work asked them if pervision, management, and control of the there would be any objection to putting some work to such independent contractor, and of the dirt excavated from the subway at hence, where this has not been done, the a point indicated on the old right of way, reason for the application of the doctrine to which the members of said board respondfails. Staldter v. City of Huntington, supra, ed, in effect, that they had no objection if 153 Ind. at 363, 55 N. E. 88.

it would not interfere with any farmer or In this connection, however, appellants are ith any former arrangements that had been met with a contention by appellee that their made. This evidence could, in no event, afmotion for new trial was joint, and that fect the liability of the county represented the ruling thereon was proper unless it by such board. Even if appellants' action should have been sustained as to both appel- were predicated upon the violation of some lees; that, under the evidence, there can be duty owed to the public by such board, in no liability against the board of commis- connection with the maintaining of said sioners, and hence no available error result- highway, it is now settled in this state that ed from the ruling on said motion for new the county is not liable for acts or omissions trial.

of its officials resulting in defects in its roads [4] The rule is well settled that the over or bridges. Board, etc., v. Allman, 142 Ind. ruling of a joint motion for new trial, to be 573, 42 N. E. 206, 39 L. R. A. 58. available, on appeal, must have been errone If the trespass for which appellants seek ous as to all who joined therein, and like to recover damages was in fact a trespass wise that the overruling of such a motion, upon the public highway, they have no when it is joint and general as against all in cause of action against either appellee, bewhose favor the verdict or decision was ren cause their complaint proceeds upon the thedered, furnishes no ground for reversal, un- ory of a trespass on their own land. On the less the movers were entitled to a new trial other hand, if the land on which the trespass as to all against whom they asked it. Pres was committed was, as appellants contend, a cott et al. v. Haughey et al. (1898) 152 Ind. highway which had in fact reverted to appel517, 51 N. E. 1051, 53 N. E. 766; Kendel, lants—a question which we need not and do Adm'r, v. Judah (1878) 63 Ind. 291 ; Hatfield not decide--any permission given by said et al. v. Rooker et al., 56 Ind. App. 1, 6, 104 board of commissioners to said contractor, N. E. 798.

permitting it to place dirt on such highway, We have carefully read all the evidence in was a nullity which could in no way affect

such board. In such case, the contractor, and, and not a "private carrier,” and hence it could those engaged with him in such work, were

not limit its liability as a common carrier. responsible for such trespass, and hence lia

[Ed. Note.-For other cases, see Carriers,

· Cent, Dig. 88 1, 462-478, 1252; Dec. Dig. ble for any damages resulting therefrom.

4, 307(1). See cases supra.

For other definitions, see Words and Phrases, It follows that no liability is shown by the First and Second Series, Common Carrier; Prievidence against the appellee the board of vate Carrier.) commissioners, and hence as to it the motion 7. CARRIERS 307(2)-LIMITING LIABILITY for new trial was properly overruled. As BY CONTRACT. said motion was joint, and general against A common carrier of passengers cannot, by both judgment plaintiffs, and was properly contract, relieve himself from liability for his overruled as to one of such plaintiffs, no negligence, except in case of a gratuitous pass. available error is presented by an assignment Cent. Dig. S 1253; Dec. Dig. Om 307(2).]

[Ed. Note.--For other cases, see Carriers of error which challenges the ruling on said motion. See cases cited supra.


TIONS-HARMLESS EBROR. The judgment below is therefore affirmed.

The giving of an instruction open to criti. cism, but not likely to be prejudicial, is not

ground for reversal in view of Burns' Ann. St. (67 Ind. App. 238)

1914, $ 700. VANDALIA R. CO. v. STEVENS. (No. 9069.)*

[Ed. Note.-For other cases, see Appeal and (Appellate Court of Indiana. Jan. 23, 1917.) Error, Cent. Dig. &4066, 4543; Dec. Dig. Om

1170(9).) 1. CARRIERS 245—PLEADING-RELATION OF CARRIER AND PASSENGER. A complaint alleging that "plaintiff took

Appeal from Circuit Court, Knox County: passage on one of defendant's passenger trains Benj. M. Willoughby, Judge. to be carried,” etc., is good against a demurrer Action by Ira Stevens against the Vanon the ground that it does not show that plain- dalia Railroad Company. Judgment for tiff was a passenger, though there was a further averment that plaintiff was required to pay plaintiff and defendant appeals. Affirmed. only $1.50 a month for passage.

Clarence B. Kessinger, of Vincennes, and [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1076, 1275; Dec. Dig. Om 245.)

Samuel O. Pickens, Owen Pickens, and John 2. APPEAL AND ERROR 837(4)—SCOPE OF G. Williams, all of Indianapolis, for appelREVIEW-MEMORANDUM OF GROUNDS.

lant. William H. Hill, of Vincennes, for apThe Supreme Court, in reviewing an order pellee. sustaining a demurrer to an answer, is not limited to specifications of error appended to the demurrer, but may consider any objection fatal

HOTTEL, J. This is an appeal from a to the sufficiency of the answer.

judgment for $500, recovered by appellee in [Ed. Note.--For other cases, see Appeal and an action brought by him against appellant Error, Cent. Dig. 8 3274; Dec. Dig. Om837(4).) to recover for personal injuries alleged to 3. CARRIERS 307(1) – TORTS LIMITING have been sustained by him while on a train LIABILITY.

A common carrier of passengers may, by operated by appellant, between the mine of contract, limit his contract liability for injuries, the Indian Creek Coal & Mining Company, as insurer, but not his liability for torts due to where appellee was employed as a miner, his own fault or negligence.

and the city of Vincennes. The complaint is (Ed. Note.-For other cases, see Carriers, in one paragraph, and proceeds upon the theCent. Dig. $ 1252; Dec. Dig. Om307(1).]

ory that appellee was a passenger upon ap4. CARPIERS C4-Common CARRIERS-STAT-pellant's train when injured, and that his UTORY PROVISIONS.

Burns' Ann. St. 1914, § 5271, declaring injuries were caused by appellant's neglirailroad companies common carriers, does not gence. A demurrer to the complaint, accontemplate that a carriage by them different companied by proper memorandum, from that usually undertaken or required shall overruled, and such ruling is here assigned be treated as common carriage. (Ed. Note.-For other cases, see Carriers,

as error and relied on for reversal. Cent. Dig. $$ 1, 462-478; Dec. Dig. Om 4.]

[1] It is insisted that the averments of 5. CARRIERS Owt-LIMITATION OF LIABILITY. the complaint do not show that the relation

A common carrier cannot, by the words of of passenger and carrier existed between apits contract, convert itself into a private car-pellant and appellee at the time the latter rier; it being a matter to be determined by the received the injuries of which he complains. nature and character of the carriage.

The averments of the complaint necessary to (Ed. Note.-For other cases, see Carriers, Cent. Dig. $S 1, 462-478; Dec. Dig. 4.) an understanding of such question, and other 6. CARRIERS ww4, 307(1)—“Common CARRIER" questions hereinafter considered, are, in sub

-PASSENGERS--LIMITATION OF LIABILITY-stance, as follows: Appellant owned and “PRIVATE CARRIER.

operated a railroad from Indianapolis to A railroad company connected with its main line a spur to a coal mine, and operated thereon Vincennes, with branch roads or spurs leadregular passenger and freight trains. The owner ing off of such main line. One of such spurs of the mine contracted with the railroad for the left the main line between Bruceville and exclusive carriage daily of the miners, they in Bicknell in Knox county, and extended into turn agreeing with the owner of the mine that the Indian Creek coal mine. he could deduct $1.50 per month from their

In operating wages for such transportation. Held, that the its main line and branches appellant owned railroad was a "common carrier” of passengers, and used thereon a number of locomotive eno


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

*Rehearing denied. Transfer denied.



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gines and trains of cars, both freight and , to and from his work. Said contract is made passenger, and operated passenger trains part of the answer and is as follows: thereon drawn by its locomotive engines. On "Whereas, Indian Creek Coal & Mining ComFebruary 29, 1912–

pany, a corporation under the laws of the state

of Indiana, owns and operates a coal mine lo "plaintiff took passage on one of defendant's said cated in Knox county, state of Indiana, on the passenger trains upon said road, to be carried Knox County Coal Branch of the Vincennes to the city of Vincennes, Ind.; that he boarded Division of the Vandalia railroad; and whereas, said train at said Indian Creek coal mine; that said Indian Creek Coal & Mining Company has for passage over said road from said mine to

requested Vandalia Railroad Company, a conVincennes * plaintiff solidated corporation organized and existing unwas required to pay * $1.50 per month." der the laws of the states of Indiana and IlliPlaintiff boarded said train at said mine "and nois, to furnish said Indian Creek Coal & Minentered the passenger coach near the front ending Company special facilities for getting miners about 12 feet from the

stove; living in the city of Vincennes and the immethat the agents of * defendant diate vicinity, and employed by said coal com; set the air brakes on said coach, and then uncouples the engine *

pany, to and from said mine; and, whereas, said and

* did

Vandalia Railroad Company is not a common some switching in and about said mine; that carrier of passengers for hire over said branch said coach was left standing on a steep grade; of its Vincennes division, and does not operate

that by reason of deficient air-brake equipment and deficient air connection the air to do so; and whereas, said 'Vandalia Railroad

any passenger trains thereon, and is not willing brakes on said coach became released; that upon Company is willing, in the capacity of private the releasing of said air brakes said coach and the caboose coupled with it started terms and conditions hereinafter set forth, said

carrier, but not otherwise, to furnish, upon the down grade.


Indian Creek Coal & Mining Company with the mediately upon the coach starting to run down facilities desired by it for getting its miners to grade the engine which had been used for and from said coal mine; now, therefore, this switching was, by the agents of

defendant, run backward toward said

agreement made and entered into by and becoach, that said coach and caboose

tween said Vandalia Railroad Company, bereincol

after designated Railroad Company, and said lided with # said engine; that said col- | Indian Creek Coal & Mining Company, herein. lision caused * plaintiff to be thrown after designated Mining Company, witnesseth; about 12 or 15 feet to the heating

"1. In consideration of the premises and of stove

heated to a red heat,” etc. (Our the covenants and agreements hereinafter set italics.)

forth to be by the Coal Company kept and perAs against a demurrer, the italicized aver- formed, the Railroad Company in the capacity ments, supra, make the complaint sufficient of a private carrier, and not otherwise, hereby

covenants and agrees that it will, as soon as to withstand appellant's said objection. In- possible after the execution of this agreement, diana Union, etc., Co. v. McKinney, 39 Ind. furnish the Coal Company a sufficient number App. 86, 78 N. E. 203; Ohio & M. Ry. Co. v. of cars and an engine and train crew to haul Craucher, 132 Ind. 275, 31 N. E. 941; Wal- and cars as a train of the coal company between

and handle the same, and will run such engine ther v. Southern Pac. Co., 159 Cal. 769, 116 said city of Vincennes and said coal mine. Pac. 51, 53, 37 L. R. A. (N. S.) 235.

“A blueprint, showing the route of said train We cannot agree with appellant's conten- between the points named, is hereto attached as tion that the effect of such averment is de- an exhibit marked 'A', and for the purpose of

identification, is signed by the chief engineer stroyed by the words which follow, showing of the Railroad Company and by the president that appellee was required to pay only $1.50 of the Coal Company. a month for such passage. The effect of the

"Said cars shall be used by said coal company

for the sole purpose of carrying miners employlatter averment is to strengthen, rather than ed by the coal company between the said city of to weaken, the former,

Vincennes and its said coal mine. To said complaint the appellant filed an "The Railroad Company will furnish to the answer in three paragraphs, the first being a

coal company a sufficient number of cars to

carry each working day the said miners employ. general denial.

ed at its said mine and will haul for the coal The second paragraph is predicated on a company said cars in a train, which shall leave contract entered into between appellant and the Union Station in said city of Vincennes in the mining company by the terms of which the morning of each working day and run to

said mine and shall return from said mine to the appellant undertook to contract as a said Union Station in the afternoon of each private carrier to carry the employés of said working day: Provided, always, however, that mine from their homes at Vincennes to their said train shall not run on any day other than place of work at said mine and return, with a working day and that said train shall not a proviso to the effect that appellant should make more than one round trip each working

day. not be liable for any damages to any em 2. In consideration of these premises the ployé on account of injury or death resulting Coal Company hereby covenants and agrees to to such employé while on, or getting on or pay to the Railroad Company the sum of fire

hundred dollars ($500) per month for each off, appellant's said train, no matter how and every month during the continuance of this such injuries were caused. Said paragraph agreement, provided, always, however, that if of answer avers that it was under and pur- the number of persons on said train to or from suant to such contract that appellee was on

said mine on said working day during any said train when injured; that appellee had month exceeds five hundred (500) the Coal Com

pany will pay to the Railroad Company for paid appellant nothing for his passage; that that month an additional sum of one dollar the $1.50 paid by him, as averred in the com- ($1.00) for each person so handled in excess of plaint, was paid to the mining company to five hundred, and provided further that no re

duction for any cause whatever shall in any ward the expense of running such train, month be made from said monthly payment of

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