The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-02-24

work, which the servant Is employed TO
perform, and when the servant, without
the command or acGuiescence of the mas
ter, voluntarily undertakes hazardous work
outside OF his employment, he puts himself
beyond the protection of the masters inn
pied obligation. and If he is injured he
is without remedy; but in the presence Of
an emergency, when an unusual situation
presents itself, and the employee, having
In view the general scope of his duty, vol
UNFAIRLY steps outside the strict bounds
or his employment, he is justified II. under
the circumstances of the case, common
prudence fairly and reasonably called for
the act 2. A train conductor, who Is the
responsible agent for his train, has within
the scope OF his employment the right to
Use such care and caution as the nature
and magnitude of his trust fairly dema nds.
3. Because q flood which caused the mis-
placement of a bridge-trestle, was unusual
and extraordinary, will not excuse a rail-
read company which erected Ii, If the char
acter and history of the stream showed
that such a flood might at any time be
reasonably expected. L. In constructing a
trestle across stream railroad company
Is required to provide against such dam
gers as can be reasonably foreseen, and
adopt such precautions as men of ordinary
sagacity and caution might anticipate and
look forward TO.
1877. c.. c.. c. & st. L. Ry Co. VS. Klee.
Hancock c. c. Reversed. Baker. j.
l. The question of the negligence OF child
nine years OF age is to be determined as a
fact in the case. and when the incapacity
OF such child TO apprehend danger is al
legged, his freedom from negligence contrib
uting to the injury of which he complains
need not be pleaded. 2 y child nine years
old Is not presumed to be non sui juris.
1907. Government, ETC., Inst. VS.. Denny.
Jay 9. G. Petition for rehearing overruled.
1901. Everett VS.. Fouts. Tippecanoe c.
G. Motion to dismiss postponed until final
hearing.
1920. Cunningham VS.. Tuley. Floyd c..
c. Petition for rehearing overruled.
1850. United etc. Co. VS.. Brock. Della
ware c. c. Certiorari granted and issued.
APPELLATE COURT.
3017 Romine VS.. L. & T. H. r. r. Co.
Sullivan c. G. Reversed. Black il. 1t
is within the power of the court to control
verdict by instruction to the jury only
where there Is total absence Of evidence
upon some essential issue, or where there
is no conflict and the evidence is susceptible
Of but one inference. 2. The question Of
negligence must be submitted to the jury
where there is room for difference of opin-
lon between reasonable men as to the in
ferences which might be fairly drawn from
conceded facts. 8. Where the differences
to be drawn from the proof are not GER
tam and uncontrovertible the question of
negligence cannot be decided as question
of law. T. common carrier owes the
passenger the duty of warning him against
danger when 1t is at hand and of caution
Ing him against acts of imprudence which
may endanger his person whenever the cir
cumstances are such that the safety OF the
passenger seems to require It:
3037. Reid VS.. Town of Sullivan. Sulli-
van G. Q. Affirmed. Henley, IA men,
orandum Of the date of presentation of a
bill of exceptions, not within the bill itself,
although signed by the judge, does not
meet the requirements OF Section CO. Re-
vised Statutes, 1881, so as to make the sig
nature in time.
2512. Traders Insurance Co. VS. Cassell.
Henry c. G. Reversed. Robinson, il.
Where person executes chattel mortgages
al - s~,e-< 1@ce
by fire, without the consent Of the insurer
as provided by the policy, the insurer is not
liable for any loss which occurs without
acquiescence upon proper notice. 2 The
public record of chattel mortgage upon
insured property is not notice thereof to
the insurer. 3. If the insurer, with knowl-
edge of the facts constituting a forfeiture,
continues to treat the insured contract as
in force and induces the insured to incur
expenses and trouble while acting in that
behalf. the insurer is estopped to take ad-
vantage of the forfeiture. A. An insurance
policy is contract. and the insured &C
cepts 1t with full knowledge of its condi-
tons, and in the absence of fraud or mis-
take is conclusively presumed to know its
contents. 5. knowledge by an agent con-
corning a matter about which the insured
knows he is not authorized to act. in re-
spect of which he does not act In behalf OF
the company, is not ground of estoppel.
1882. G. e. T.. ILL., Ry. Co. VS.. Ross. Parke
c. c. Affirmed. Comstock. il. The cause
of a fire is a question of fact to be deter
mined from the evidence. 2. When the de-
cision Of the court is within the issues 1t is
not contrary to law. 3. A railroad COM
pany is liable for damages caused by neg
iigently setting out fire on its right of way
or negligently permitting II to escape there
from.
SUPERIOR COURT.
Room John L. McMaster, Judge.
Emil Wulschner & Son VS.. Lota Lehrit-
ter; replevin. On trial by jury.
Room 3-Vinson Carter, Judge.
Fannie Schloss VS.. Indianapolis Street.
railway Company; damage. Jury return
verdict for PLAINTIFF for $500.
Harry G. Andrews VS.. L. b. Laycock
Company; damages. On trial by jury.
CIRCUIT COURT.
Henry Clay Allen, Judge.
Marion Trust Company, guardian. VS.
Emma Dawson ct al; partition. Commits
sioner files report of partition. Confirmed
Harvey Il. Fatout, commissioner and sur
veyor, allowed $125. Theodore Wilson and
as commissioners Carson Thompson al
lowed $3.50 for services as plaintiffs attor.
neys. Roger A. Sprague allowed SS5 at
torneys fees and by agreement of parties
500 is ordered to Henry n. Span.
Henry Steele naturalized
Roger A. Sprague VS.. James Dawson's
Estate; by agreement of parties claim al.
lowed for the sum of $125 to be credited
with $50 heretofore allowed in Cause 975S
at costs of estate.
William j. Roach VS.. Frederick Belck's
Estate; submitted to court. Finding fol
claimant. Allowed for 1925 VS.. Robert
Freund as principal and estate of Frederick
Belck as surety. and costs.
Addie L. Hardy VS. Patrick j. Carbon e'
| al: for an accounting. Defendant Carlor
defaulted. Submitted to court. Finding
| for plaintiff. Judgment vs. defendant Car
| lon for s1450 and costs.
| Lewis Brandenburg ct al. VS.. Washington
| Savings and Loan Association; for re-
| ceiver. Petitioners Rhoda A. Stewart ant
| Harriet A. Bonham file appeal bond will
American Bonding and Trust Company a:
surety Approved by court.
Charles w. Caniield VS.. Ella Garfield
| divorce. Submitted to court. Evidence
| heard. Finding for defendant on complaint
and on complaint. Decree of divorce
| Custody of child. Jennie M. awarded Il
| plaintiff. Judgment VS.. plaintiff for costs
I! Herman Wilkowskie naturalized.
NEW SUITS FILED.
Frank s. Melton VS.. N. Belle Melton; d.
vorce. Circuit Court.
| Abel Schusser VS.. Anna Schussler; d.
| vorce. Superior Court, Room 2.
| Charles f. Sherling VS.. John w. Fort
| suit on note. Superior Court, Room l.
Edwin D. White VS.. Ida 3. White; di
vorce Superior Court Room 2.
James f. Pierce VS.. Charles w. Nickum
| replevin. Superior Court, Room 8.
| The Governor Returns.