lessly and negligently inclined the same toward the west; that it became and was necessary for appellee in the line of his duty to remove a spaul or small stone from the channel made by the drills, and to do so he had to place his left hand upon one of the T-rails of the track, and thereupon, while in that position, and while working in the line of his duty, on account of the track inclining downward and westward toward his hand, and the negligence of said Paxton in failing to make the track level, the machine suddenly ran upon and over his left hand and injured him as alleged.

The third paragraph contains substantially the same general averments as the first and second, and alleges that while appellee was engaged in removing the spaul from the channel made by the machines, and William Paxton, an employé of appellant, operating another channeling machine on said track, suddenly, carelessly, and negligently started his machine and caused the track to vibrate, and thereby caused appellee's machine to start and move to the west and injure his hand in the manner aforesaid.

William Paxton; that the machine operated by appellee faced the east, and the one operated by Paxton faced to the west; that each of said machines was operated by two engines, one of which was used to raise and lower the drills which did the channeling, and the other and smaller engine moved the machine along the track; that a Sullivan machine is stopped by moving a certain lever and placing the machine on "center"; that when such machine is in good repair and perfect working condition, and so stopped, it will not move until taken off "center"; that the larger of the two engines operated the drills which do the channeling, and to stop channeling such engine was put on "cushion," and the drills, though in motion, would not then strike the stone; that appellant carelessly and negligently permitted the small engine and gearing on said machine operated by appellee to become defective and out of repair, so that when the aforesaid machine or engine was placed on "center" and the machine stopped it would not at all times remain on "center" and keep the engine from moving; that appellant knew the small engine on the machine operated by appellee was The demurrer to each paragraph of the defective and dangerous to the life and limbs complaint was for insufficiency of the facts of those operating it, or might by the exer- alleged to state a cause of action. The memocise of reasonable care have known thereof, randa contain numerous specifications of aland that it would not remain stationary when leged reasons for such insufficiency, the gist placed on "center"; that, while operating said of which is that the allegations fail to show machine on the day aforesaid, a spaul or any negligence on the part of appellant which piece of rock fell down into the channel was the proximate cause of appellee's injury; where the drills were operating, and it was the allegations fail to show that appellee did necessary for appellee in the line of his duty not know and appreciate the danger incident to remove the same in order to continue his to his employment; that each paragraph work of channeling; that thereupon he set shows that the injury was due to an unavoidthe small engine on "center" by using the lever able accident on the part of a fellow servant provided for that purpose, and went behind which could not have been foreseen and the machine to remove the spaul from the guarded against by appellant; that the inchanneled space in the rock; that in so doing jury was due to hazards inherent in the emhe laid his left hand on one of the T-rails, ployment and the risk was assumed by appelwhen on account of its defective condition lee; that the allegations conclusively show aforesaid the machine suddenly ran back-appellee's injury was contributed to by his ward and caught his hand, and cut and man- own negligence; that they fail to show the gled it so that he lost all but the thumb and a part of one finger; that "said injury was caused by reason of the defective condition of the small engine on his channeling machine, and the carelessness of said defendant in permitting said condition to exist, and to have remained for months prior to his injury."

The second paragraph of complaint contains the same general averments as the first paragraph, and also charges that a track was laid over and upon the stone to be channeled, along and over which said machines were propelled; that it was necessary to the operation and safety of the machines that the track be kept level; that appellant employed one William Paxton to lay and level said tracks, and it was his business to see that the track was kept level; that Paxton carelessly and negligently failed and neglected to keep and maintain said track level, and care

master's knowledge of the alleged defects in time to make repairs and avoid the accident; that the averments do not negative knowledge of the defects on the part of appellee; that the averments fail to state a cause of action under the Employers' Liability Act of 1911.

Each paragraph of the complaint seeks to state a cause of action under the Employers' Liability Act of 1911 (Acts of 1911, p. 145; section 8020a et seq., Burns' 1914), and must therefore be tested by such theory. Section 1 of the act provides that:

"Any person, firm or corporation while engaged in business, trade or commerce within this state, and employing in such business, be liable to respond in damages to any person trade or commerce five or more persons shall suffering injury while in the employ of such person, firm or corporation, * where such injury or death resulted in whole or in part from the negligence of such employer or his, its or their agents, servant, employés or

officers, or by reason of any defect, mismanage while appellee was in the act of removing the ment or insufficiency, due to his, its or their spaul from the channel in the stone, and carelessness, negligence, fault or omission of duty." thereby produced vibration of the track, which caused appellee's machine to start sud

Section 2 of the act (section 8020b, Burns' 1914) provides:

"In actions brought against any employer under the provisions of this act for the injury or death of any employé, it shall not be a defense that the dangers or hazards inherent or apparent in the employment in which such injured employé was engaged, contributed to such injury." Section 3 of the act (section 8020c, Burns' 1914) provides:

"In any action brought against any employer under the provisions of this act to recover damages for injuries to or the death of, any of his, its or their employés, such employé shall not be held to have assumed the risk of any defect in the place of work furnished to such employé, or in the tool, implement or appliance furnished him by such employer, where such defect was, prior to such injury, known to such employer or by the exercise of ordinary care might have been known to him in time to have repaired the same or to have discontinued the use of such defective working place, tool, implement or appliance. The burden of proving that such employer did not know of such defect, or that he was not chargeable with knowledge thereof in time to have repaired the same or to have discontinued the use of such working place, tool, implement or appliance, shall be on the defendant, but the same may be proved under the general denial."

denly and run over and crush his hand. This
paragraph states a cause of action under the
first section of the act, supra. Indiana Quar-
ries Co. v. Farmer, 110 N. E. 549; Central
Ind. Ry. Co. v. Clark, 112 N. E. 892; Chicago
& E. Ry. Co. v. Mitchell, 110 N. E. 680.
Since each paragraph of the complaint is
sufficient under the statute, it is unnecessary
to consider the propositions discussed by ap-
pellant relating to common-law liability.

The answers of the jury to interrogatories in substance show that appellee had been operating a channeling machine for five months or more before his injury, and that he had full control of the machine he operated; that it was his duty to see that the machine was in good running order, to make such adjustments and repairs as he could make, and report to the mechanic such as he could not make; that appellee's machine got off center two or three weeks before he was injured, and he was told by one of appellant's mechanics that it had been fixed; that each operator of a channeling machine inspected it and reported defects; that appellant had its channeling machines inspected by the operators of them and also by mechanics; that appellee stopped his machine before attempting to remove the spaul from the channel cut, and placed his hand on the Trail with his back to the machine, and was injured while in that position; that the machine started because of the defective gearing; that the gearing and dogs on the small engine of machine No. 9 operated by appellee were defective; that appellant required oper

[1] The averments of each paragraph of the complaint bring it within the general purview of the statute. The first paragraph of the complaint shows that the small engine and the gearing of the machine operated by appellee became and were defective and out of repair, so that when the machine was stop ped and set on "center" it would not always remain still, but would sometimes start and move along the track because of such defective condition, when it should have remained stationary on the track; that appellee's in-ators of such machines to have skill and exjury was caused by the carelessness of appellant in permitting such defective condition to exist "and to have remained for months prior to appellee's injury." These averments state a cause of action under the first and third sections of the act of 1911, supra, and we therefore hold the first paragraph sufficient. Kokomo Brass Works v. Doran, 59 Ind. App. 583-588, 105 N. E 167; Vandalia R. R. Co. v. Stillwell, 181 Ind. 267-271, 104 N. E. 289, Ann. Cas. 1916D, 258; Vandalia Coal Co. v. Alsopp, 109 N. E. 421, 422; Domestic Block Coal Co. v. De Armey, 179 Ind. 592-601, 100 N. E. 675, 102 N. E. 99.

perience sufficient to inspect the machines, and appellee had such skill; that the friction gear is a part of the engine; that William Paxton on the day of appellee's injury was operating a similar machine on the same track; that appellee and Paxton were of equal rank in employment, and appellee was not required to obey the orders of Paxton; that it was a part of appellee's duties to level the part of the track on which his machine ran; that the track was out of level, one-half inch to 12 feet, at the place where appellee was injured, and the condition of the track had something to do with appellee's in[2] The gist of the second paragraph of jury; that it was the custom for appellee and complaint is that it was necessary to keep | Paxton to start and stop their respective mathe track level on which the machines operated, and that appellant negligently failed to so keep and maintain the track, and because thereof appellee's machine suddenly started and crushed his hand. These averments state a cause of action under the first, second, and third sections of the act, supra.

[3] The gist of the third paragraph is that Paxton, a fellow servant of appellee, negligently started the machine he was operating

chines without notifying the other party, and this custom was known to appellee; that the starting of Paxton's machine probably had something to do with appellee's injury, by jarring the track.

Appellant asserts that the answers conclusively establish the fact that appellee was guilty of contributory negligence, that his opportunity was better than that of the master to ascertain the defects which caused his in

jury, and that the answers conclusively showrence county, who on September 14th, made that the master could not have been negligent return showing the witnesses not found in as alleged without appellee also being guilty his bailiwick. The affidavit states that apof negligence contributing to his injury. The general verdict is a finding in appellee's favor as to all the paragraphs of the complaint and of every issuable fact in each of such paragraphs.

[4] To overcome the general verdict the answers to the interrogatories must show that they are in such irreconcilable conflict with the general verdict that it cannot be sustained on either of such paragraphs, or by any evidence that might have been offered under the issues of the case.

pellant then learned for the first time of the absence of the witnesses, and that they "are now in the state of Michigan at work in a stone quarry, but the exact location of said quarry is unknown" to appellant and its attorneys; that affiant believes the statements to which said absent witnesses will testify to be true, and appellant "is unable to prove said facts by any other witness whose testimony can be as readily procured"; that the absence of the witnesses had not been procured by the act or connivance of [5] The first paragraph charges defective appellant, or by any other person at its remachinery and appliances. The answers quest or with its knowledge or consent. Secshow that it was appellee's duty to inspect tion 419, Burns' 1914 Statutes, which authorhis machine, but they also show that appel-izes the postponement of trials on account lant provided mechanics other than the oper- of the absence of evidence, among other ators of the machines to inspect and keep things, requires the affidavit to showthem in repair, and that one of such mechanics had informed appellee that his machine had been fixed after it had been out of repair some two weeks before the accident. Keep ing in mind the provisions of the act of 1911, supra, which state the conditions under which an employer may be held liable to an employé for a personal injury, and the provisions as to the assumption of risks, it becomes apparent that the answers are not in irreconcilable conflict with the general verdict, based on the first paragraph of the complaint. Appellee was required to use ordinary care for his own safety, and the answers do not show that a reasonably prudent person, in the exercise of ordinary care, would not have done as he did under the circumstances, or that such person would have done something he failed to do to avoid the accident.

[6] The answers fall short of showing that they are in irreconcilable conflict with the general verdict, if based on the first paragraph of complaint, and it therefore becomes unnecessary to consider the question in relation to the other paragraphs, since the general verdict presumably rests on all the paragraphs, and the motion was properly overruled, if it may be sustained on either one or more of the paragraphs of the complaint.

"that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring the testimony within a reasonable time."

The showing of diligence to procure the attendance of the absent witnesses is not satisfactory, and there is no showing of any probability of procuring the attendance of the witnesses within a reasonable time. Trial courts have a judicial discretion in granting or refusing continuances, and on the showing made in this case there was no such abuse of that discretion as will warrant this court in reversing the judgment because of the court's refusal to postpone the trial. Post v. State ex rel., 14 Ind. App. 452-458, 42 N. E. 1120; Deacon v. Rasch, 40 Ind. App. 77-80, 81 N. E. 84; Dunnington v. Syfers, 157 Ind. 458-462, 62 N. E. 29; Weaver v. State, 154 Ind. 1-4, 55 N. E. 858; Pettit v. State, 135 Ind. 393-405, 34 N. E. 1118.

[8] Appellant complains of the giving of certain instructions to the jury and of the refusal to give others tendered by it. In its briefs appellant has only set out those given and excepted to by it. Considering the instructions as a whole in connection with our view of the complaint, they state the law substantially as declared in this opinion and the cases cited. Any objection to the instructions tendered and refused by the court is waived by failure to set them out in the brief, and also by the failure of appellant to state any point or proposition relating thereto in its briefs.

[7] Under the assignment that the court erred in overruling the motion for a new trial, appellant presents alleged error of the court in overruling its application for a postponement of the trial on account of the absence of two witnesses. The affidavit for the continuance was made on the day the case was set for trial, and sufficiently sets The case seems to have been fairly tried, forth the materiality of the evidence and the and a correct result reached on the merits. competency of the absent witnesses. The There is evidence tending to sustain the vercase was set for trial on September 16, 1914, dict. No intervening errors have been pointin the Lawrence circuit court. The sub-ed out which deprived appellant of any subpœna was issued on September 11, 1914, and stantial right or warrant a reversal. placed in the hands of the sheriff of Law- Judgment affirmed.

MOTION TO MAKE Where a complaint to foreclose a mechanic's lien on property owned by defendants in entirety alleged the construction of buildings on the [1] The several rulings of the trial court, premises under a contract with the husband and above indicated, except the last, are each then alleged that the buildings were constructed with the knowledge, consent, and acquiescence separately assigned as error in this court, of the wife, and that in all things therein and relied on for reversal. The ruling last mentioned the husband acted as agent for the above indicated is attempted to be presentwife, a motion to make more specific by show-ed by the first ground of appellants' motion ing what knowledge, if any, plaintiff had given the wife was properly overruled, since the complaint, in effect, alleges that the wife had all the knowledge in her husband's possession.