(66 Ind. App. 521) HOTTEL, J. This is an appeal from a ROOKER et al. v. LAKE ERIE & 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.)

1. MASTER AND SERVANT 315-INDEPENDENT CONTRACTOR-LIABILITY.

Ordinarily, an employer is not responsible for an independent contractor's acts, provided he reserved no control over such acts, except the right to see that a particular standard was attained.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1241, 1244-1253, 1255, 1256; Dec. Dig. 315.] 2. RAILROADS

18-CONTRACTS-VALIDITY. A railroad cannot by contract relieve itself from public duties imposed by its charter,

without the state's consent.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 39-44: Dec. Dig. 18.] 3. MASTER AND SERVANT ENT CONTRACTOR-TRESPASS-LIABILITY OF RAILROAD.

315-INDEPEND

A railroad, owing no charter duty to the general public to refrain from trespassing on plaintiffs' land during a grade separation, may avail itself of the defense that an independent contractor did the trespassing.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1241, 1244-1253, 1255, 1256; Dec. Dig. 315.]

4. NEW TRIAL 112-JOINT MOTION.

Overruling a joint motion for new trial, to be available, must have been erroneous as to all joining therein, and the movers must have been entitled to a new trial as to all against whom they asked it.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 233; Dec. Dig. 112.] 5. RAILROADS 114(1)-CONSTRUCTION INJURIES-PARTIES DEFENDANT.

damages for trespass upon their lands. The issues of fact were tendered by a complaint in one paragraph and a general denial. The complaint alleges, in substance, that, during the years 1913 and 1914, the appellees, in constructing a subway separating the grades

of the Lake Erie & Western Railroad Company and the traveled way of the Indianapolis and Noblesville turnpike, a public highway, at a point one mile south of the city of Noblesville, in disregard of appellants' rights, entered upon their lands, and used and occupied the same for one year and removed gravel, earth, and other substance therefrom and piled thereon waste gravel, earth, and material, and left and abandoned the same on said premises, to appellants' damages in the sum of $150, payment for which has been demanded and refused.

Appellants' motion for new trial was overruled, and this ruling is assigned as error in this court and relied on for reversal. Said motion contains three grounds, the last two of which, respectively, challenge the decision of the court as not being sustained by the evidence and as being contrary to law. The same questions are presented by each of said grounds, and a disposition of them will dispose of the appeal. Appellants concede that there is no material conflict in the evidence.

The facts which gave rise to the litigation, as stated by appellants in their original brief, are as follows:

Under Acts 1913, c. 182, requiring the board of county commissioners to be served in certain railroad grade separation proceedings before the Public Service Commission, the board is not a necessary party defendant in an action against a railroad for damaging land while separating grades pursuant to the commission's order. [Ed. Note. For other cases, see Railroads, Cent. Dig. 368; Dec. Dig. 114(1).] 6. COUNTIES 146-CONSTRUCTION WORK-pike, sometimes called the Allisonville road. LIABILITY.

"The Public Service Commission of Indiana made an order in a cause pending before it: (1) For the abatement of a grade crossing, and (2) the construction of a subway at a point one mile south of Noblesville, where the tracks of the Lake Erie & Western Railroad Company cross the Noblesville and Indianapolis turnPlans 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 contractor trespassing on plaintiffs' land during grade separation work.

[Ed. Note.-For other cases, see Counties, Cent. Dig. § 212; Dec. Dig. 146.] 7. TRESPASS 43(4)-VARIANCE.

Under a complaint that defendants in separating a railroad grade trespassed on plaintiffs' land, there can be no recovery if the land was in fact a public highway.

[Ed. Note.-For other cases, see Trespass, Cent. Dig. §§ 108-111; Dec. Dig. 43(4).] Appeal from Circuit Court, Hamilton County; James M. Punis, Special Judge.

Action by William V. Rooker and Dora E. Rooker against the Lake Erie & Western Railroad Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

pany and adopted by the commission. The work was ordered to be performed by the railroad company, and the cost was apportioned between it and Hamilton county. The railroad sublet a part of the labor, retaining to itself the furnishing of all material and the performance of certain skilled work. In the process of destroying the 'old' crossing and constructing the 'new' subway, entry was made upon appellants' lands, which were used for stabling teams, for storage of materials, for construction purposes, a boathouse thereon was wrecked for kindling, gravel was taken for construction purposes, and a mass of waste earth and debris containing some 1,000 or 1,200 cubic yards was piled upon the premises and abandoned there."

The questions involved, and determined against appellants by the lower court, and here sought to be reviewed as stated by appellants' 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 with respect to & Fertig and Phil J. Fariss, all of Noblesville, lic Service Commission for appellees. grade crossings are sufficient to accomplish

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 other tribunal. (2) Whether either the appellee railroad company or the board of commissioners could, "by resorting to the principle of independent contractor, absolve itself from liability for its duties with respect to public highway crossings."

which we have reached affecting the second question, supra, makes it unnecessary to consider the first. The construction of the subway in question was let to another con tractor. The work was one which appellees, or either of them, might legally let to 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 damage sought to be recovered is for a trespass on appellants' land-a thing wholly unnecessary to the performance of such work.

[1] Generally speaking, the contractee "is not responsible for the acts of an independ

"(1) That the acts complained of were the acts of an independent contractor for which neither the railroad company nor the county are responsible; (2) that the dirt being wasted largely upon the old road,' it was not wasted upon the lands of the appellants in the absence of a showing that the old road, though it was entirely wiped out and destroyed, was not formal-ent contractor, to whom he has let a particuly 'vacated' in a proceeding for that purpose; (3) that 'abandonment' of a public highway was not sufficient to perform the office of vacation' of a highway; and (4) that the authority of the Public Service Commission in effacing dangerous grade crossings of railroads and highways was not sufficient to admit the destroyed highway to revert to the abutting lands in the absence of a special ancillary proceeding for that purpose as provided by law for highway vacations generally."

Appellants insist that this view of the law, so taken by the trial court, was erroneous, because: (1) A highway being only an easement, or right to travel, an abandonment, when complete, effected a reverter of the part abandoned, and that formal proceedings to vacate were unnecessary, that the Public Service Commission was, in any event, clothed with ample power to vacate in such cases, and that the consummation of its order separating the grades and locating and defining the subway was, in effect, a vacation of the former grade crossing, in so far as the subway departed from such original grade crossing. (2) That the duty of a railroad company to make all necessary provisions with respect to highway crossings is a charter duty imposed by the General Assembly in the exercise of the police power of the state, and is therefore such a duty as is not susceptible of delegation by the railroad company to an independent contractor. As preliminary to a disposition of these questions, it should be stated that this appeal was taken to the Supreme Court, and the transcript of the record was filed in that court; that, since the filing of appellants' original briefs, appellees filed their petition asking the transfer of said cause to this court, under section 1397, Burns 1914. This petition was granted and the case transferred to this court. It is now insisted by appellants that the Supreme Court has exclusive jurisdiction in all cases concerning highways, and that appellees, by filing said petition to transfer, in effect conceded that no highway question was involved, and hence that the land on which the trespass involved was committed is appellants' land, and that they have therefore waived the first question above suggested.

lar work or job, where he reserves to himself no control over the same, except the right to see that it conforms to a particular standard. Staldter v. City of Huntington (1899) 153 Ind. 354, 362, 55 N. E. 88; Wabash, etc., R. Co. v. Farver, 111 Ind. 195, 12 N. E. 296, 60 Am. Rep. 696; City of Bloomington v. Wilson, 14 Ind. App. 476, 43 N. E. 37; Vincennes Water Supply Co. v. White, 124 Ind. 376, 24 N. E. 747; St. Louis, etc., Ry. Co. v. Gillihan, 77 Ark. 551, 92 S. W. 793; Waltemeyer v. Wisconsin, etc., R. Co., 71 Iowa, 626, 33 N. W. 140; New Orleans, etc., R. Co. v. Reese, 61 Miss. 581; Louisville, etc., R. Co. v. Wiggington, 156 Ky. 400, 161 S. W. 209; Runians v. Keller, etc., Co., 141 Ky. 827, 133 S. W. 960; King v. New York, etc., R. Co., 66 N. Y. 181, 23 Am. Rep. 37; Marion Shoe Co. v. Eppley, 181 Ind. 219, 104 N. E. 65, Ann. Cas. 1916D, 220; Am. & Eng. Ency. Law (1st Ed.) pp. 837-840.

However, it is insisted by appellants, in effect, that the doctrine of independent contractor has no application in this case, because the work which was here attempted to be turned over to such contractor was a work which the law required appellees to perform, and that the duties and obligations connected therewith were implied covenants of the railroad company's charter, which such company could not lay aside or cast upon the shoulders of another.

[2] The general proposition involved in appellants' contention is correct; that is to say, a railroad company cannot, by any form of contract, relieve itself from a duty to the public, imposed by its charter, without the consent of the state. Southern Indiana R. Co. v. McCarrell, 163 Ind. 469, 473, 71 N. E. 156; Braslin v. Somerville Horse, etc., Co., 145 Mass. 64, 67, 13 N. E. 65, and cases cited; Chicago, etc., Co. v. McCarthy, 20 Ill. 385, 71 Am. Dec. 285; Indianapolis, etc., Co. v. Sample, 58 Ind. App. 461, 108 N. E. 400, 405, and cases there cited.

[3] Appellants' action, however, is not one for a negligent omission of a duty owed by said company to the public generally, and on account of which appellants suffered special 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, etc., Co. v. Couch, 56 Tex. Civ. App. 336, 121 S. W. 189; Sanford v. Pawtucket, etc., Co., 19 R. I. 537, 35 Atl. 67, 33 L. R. A. 564; Boyd v. Chicago, etc., Co., 217 Ill. 332, 75 N. E. 496, 108 Am. St. Rep. 253; McCafferty v. Spuyten, etc., Co., 61 N. Y. 178, 19 Am. Rep. 267; Indianapolis, etc., Co. v. Sample, supra, and cases there cited; 24 Cyc. 1564,

1565.

It is further insisted by appellants, and with good reason, that, under the contract entered into between the railroad company and the contractor, to whom it sublet said work, the railroad company retained such supervision and control over the work that it is not relieved by such contract from responsibility for damages resulting from the trespass on which appellants' action is based.

The theory upon which the contractee is relieved from liability, in such cases, is that by his contract he has surrendered the supervision, management, and control of the work to such independent contractor, and hence, where this has not been done, the reason for the application of the doctrine fails. Staldter v. City of Huntington, supra, 153 Ind. at 363, 55 N. E. 88.

In this connection, however, appellants are met with a contention by appellee that their motion for new trial was joint, and that the ruling thereon was proper unless it should have been sustained as to both appellees; that, under the evidence, there can be no liability against the board of commissioners, and hence no available error resulted from the ruling on said motion for new trial.

be borne by the county, such board was a necessary defendant to this action, and hence had to be joined in the motion for new trial. See Act of March 11, 1913 (Acts 1913, p. 508).

[5-7] We cannot agree with this contention. In the instant case, the undisputed evidence shows that said board of commissioners had nothing to do with the work of constructing said subway, or the separating of said grades, except that it was asked to make an appropriation of $2,775, as the part Hamilton county was to pay therefor. It made this appropriation, and the railroad company undertook or agreed to construct the subway, and make the separation of grades. The railroad company, by a contract to which said board was not a party, sublet the work to an independent contractor. The only other evidence, in any way connecting such board of commissioners with said work, was evidence to the effect that the members of such board were on one occasion called down to said work, and, while there, some one in charge of the work asked them if there would be any objection to putting some of the dirt excavated from the subway at a point indicated on the old right of way, to which the members of said board responded, in effect, that they had no objection if it would not interfere with any farmer or with any former arrangements that had been made. This evidence could, in no event, affect the liability of the county represented by such board. Even if appellants' action were predicated upon the violation of some duty owed to the public by such board, in connection with the maintaining of said highway, it is now settled in this state that the county is not liable for acts or omissions of its officials resulting in defects in its roads or bridges. Board, etc., v. Allman, 142 Ind. 573, 42 N. E. 206, 39 L. R. A. 58.

If the trespass for which appellants seek to recover damages was in fact a trespass upon the public highway, they have no cause of action against either appellee, because their complaint proceeds upon the the

[4] The rule is well settled that the overruling of a joint motion for new trial, to be available, on appeal, must have been erroneous as to all who joined therein, and like wise that the overruling of such a motion, when it is joint and general as against all in whose favor the verdict or decision was rendered, 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 as to all against whom they asked it. Prescott et al. v. Haughey et al. (1898) 152 Ind. 517, 51 N. E. 1051, 53 N. E. 766; Kendel, Adm'r, v. Judah (1878) 63 Ind. 291; Hatfield et al. v. Rooker et al., 56 Ind. App. 1, 6, 104 N. E. 798.

We have carefully read all the evidence in

other hand, if the land on which the trespass was committed was, as appellants contend, a highway which had in fact reverted to appellants-a question which we need not and do not decide any permission given by said board of commissioners to said contractor, permitting it to place dirt on such highway, was a nullity which could in no way affect

such board. In such case, the contractor, and I 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. §§ 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, First and Second Series, Common Carrier; Private Carrier.]

It follows that no liability is shown by the evidence against the appellee the board of 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 both judgment plaintiffs, and was properly overruled as to one of such plaintiffs, no available error is presented by an assignment of error which challenges the ruling on said motion. See cases cited supra.

The judgment below is therefore affirmed.

(67 Ind. App. 238)

VANDALIA R. CO. v. STEVENS. (No. 9069.)* (Appellate Court of Indiana. Jan. 23, 1917.) 1. CARRIERS 245-PLEADING-RELATION OF CARRIER AND PASSENGER.

A complaint alleging that "plaintiff took passage on one of defendant's passenger trains to be carried," etc., is good against a demurrer on the ground that it does not show that plaintiff was a passenger, though there was a further averment that plaintiff was required to pay only $1.50 a month for passage.

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1076, 1275; Dec. Dig. 245.] 2. APPEAL AND ERROR 837(4)-ScOPE OF REVIEW-MEMORANDUM OF GROUNDS. The Supreme Court, in reviewing an order sustaining a demurrer to an answer, is not limited to specifications of error appended to the demurrer, but may consider any objection fatal to the sufficiency of the answer.

A common carrier of passengers cannot, by contract, relieve himself from liability for his negligence, except in case of a gratuitous pass. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1253; Dec. Dig. 307(2).]

8. APPEAL AND ERROR 1170(9)-INSTRUCTIONS HARMLESS ERROR.

The giving of an instruction open to criticism, but not likely to be prejudicial, is not ground for reversal in view of Burns' Ann. St. 1914, § 700.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4543; Dec. Dig. 1170(9).]

Appeal from Circuit Court, Knox County; Benj. M. Willoughby, Judge. Action by Ira Stevens against the Vandalia Railroad Company. Judgment for plaintiff and defendant appeals. Affirmed.

Samuel O. Pickens, Owen Pickens, and John Clarence B. Kessinger, of Vincennes, and G. Williams, all of Indianapolis, for appellant. William H. Hill, of Vincennes, for appellee.

HOTTEL, J. This is an appeal from a 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. § 3274; Dec. Dig. 837(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 contract, limit his contract liability for injuries, as insurer, but not his liability for torts due to his own fault or negligence.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 1252; Dec. Dig. 307(1).]

4. CARRIERS 4 COMMON CARRIERS-STAT

UTORY PROVISIONS.

Burns' Ann, St. 1914, § 5271, declaring railroad companies common carriers, does not contemplate that a carriage by them different from that usually undertaken or required shall

be treated as common carriage.

operated by appellant, between the mine of the Indian Creek Coal & Mining Company, where appellee was employed as a miner, and the city of Vincennes. The complaint is in one paragraph, and proceeds upon the theory that appellee was a passenger upon appellant's train when injured, and that his injuries were caused by appellant's negligence. A demurrer to the complaint, accompanied by proper memorandum, was overruled, and such ruling is here assigned

[Ed. Note.-For other cases, as error and relied on for reversal. see Carriers, Cent. Dig. §§ 1, 462-478; Dec. Dig. 4.] [1] It is insisted that the averments of 5. CARRIERS 4-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. [Ed. Note.-For other cases, The averments of the complaint necessary to see Carriers, Cent. Dig. §§ 1, 462-478; Dec. Dig. 4.] an understanding of such question, and other 6. CARRIERS 4, 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 Vincennes, with branch roads or spurs leading off of such main line. One of such spurs left the main line between Bruceville and Bicknell in Knox county, and extended into the Indian Creek coal mine. In operating

A railroad company connected with its main line a spur to a coal mine, and operated thereon regular passenger and freight trains. The owner of the mine contracted with the railroad for the exclusive carriage daily of the miners, they in turn agreeing with the owner of the mine that he could deduct $1.50 per month from their 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 en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. Transfer denied.

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 February 29, 1912—

"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-identification, is signed by the chief engineer an exhibit marked 'A', and for the purpose of 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 latter averment is to strengthen, rather than