rendered as to all the parties, and, as the record discloses that appellant took all the necessary steps after final judgment to perfect its appeal within the time allowed by the court, he has perfected a term time appeal as to all and no notice to the Home Bond Company was required. Appellee's motion to dismiss must be overruled. Leave, however, is given appellee Home Bond Company to file briefs upon the merits of the appeal within 60 days from and after the date of this opinion. VALENTINE CO. v. SLOAN. (No. 7,848.) of expert testimony whether there was a better Appeal from Superior Court, Marion County; Charles Remster, Judge. Action by Mary F. Sloan against the Valentine Company. Judgment for plaintiff, and defendant appeals. Affirmed. W. H. H. Miller, C. C. Shirley, Samuel D. Miller, and W. H. Thompson, all of Indianapolis, for appellant. John H. Kingsbury, of Indianapolis, for appellee. IBACH, C. J. Appellee brought this action and recovered $1,500 damages for personal injuries occasioned by appellant's neg 1. PLEADING (§ 34*)—SUFFICIENCY OF COM-ligence in maintaining steps in a dangerous PLAINT OBJECTIONS ON APPEAL. A complaint, averring that defendant was negligent in maintaining steps in the aisle of its theater in an irregular and uneven condition, without providing lights sufficient to disclose such condition, and that such negligence proximately caused plaintiff's injury, stated facts sufficient to bar another cause of action, so that, in the absence of demurrer, it was not open on appeal to the objection that it did not state facts sufficient to constitute a cause of action. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 34.*] 2. THEATERS AND SHOWS (§ 6*)-INJURIES TO PERSON-CONTRIBUTORY NEGLIGENCE. In an action against the proprietor of a theater for personal injuries, where plaintiff had never been in the theater before, and had no knowledge or notice of the uneven condition of the steps in the aisle, and the jury found that she was unable to see their condition, the defense of assumption of risk could not apply. [Ed. Note.-For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.*] 3. THEATERS AND SHOWS (§ 6*) - CARE REQUIRED OF PROPRIETOR. One who conducts a theater for reward or profit, to which the general public are invited to attend performances, must use ordinary and reasonable care to make the premises as reasonably safe as is consistent with the practical operation of the theater. [Ed. Note. For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.*] 4. EVIDENCE (§ 512*) - EXPERT EVIDENCE METHOD OF LIGHTING THEATER. In an action against the proprietor of a theater for personal injuries from defective steps in the aisle, where the theory of the defense was that it had provided sufficient lamps to light the theater, a question, on direct examination of plaintiff's expert, whether there was a better way to locate the lights for the purpose of distributing it about such steps was proper. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2316; Dec. Dig. § 512.*] 5. APPEAL AND ERROR (§ 1052*)-HARMLESS ERROR ADMISSION OF EVIDENCE SECURED BY VERDICT. In an action for personal injuries, where the jury found that it was dark in the aisle of defendant's theater, and that defendant failed to furnish light sufficient to disclose the condition of the steps, so that plaintiff was unable to see their condition, and that all the lamps were not lighted, any error in the admission condition in the gallery of English's Opera House at Indianapolis. It is assigned as error and argued (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling appellant's motion for new trial, upon the grounds that the court erred in giving certain instructions to the jury and in admitting certain evidence. The charging portion of the complaint is in the following words: "The plaintiff, Mary F. Sloan, complains of defendant, the Valentine Company, a corporation, and for cause of action avers that defendant maintains a public theater, viz., English Opera House, wherein it presents for reward public entertainments. That in said opera house certain aisles have been constructed and maintained on an elevation in excess of 45 degrees, with steps therein of uneven and irregular width, to wit, of the dimensions approximately of the tread at 12 and 16 inches, respectively. That for want of uniformity in tread of said steps they are deceptive and dangerous for one to descend, if not familiar with said condition. That on evening of February 8, 1908, defendant conducted a public entertainment in said theater, and that during and prior to said performance said defendant, with notice and knowledge of uneven and irregular tread of said steps, did negligently and carelessly fail, neglect, and omit to furnish and provide light of sufficient candle power, so as to efficiently disclose and expose said uneven and irregular condition of said steps. That on evening of said February 8, 1908, at the invitation of defendant, plaintiff visited said theater and attended an entertainment given by defendant therein. That she paid, and caused to be paid, to defendant the reward charged by it therefor. That at the invitation and direction of defendant plaintiff entered said theater shortly before commencement of said entertainment, and while attempting to descend an aisle therein with said elevation in excess of 45 degrees, and with said irregular and uneven For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [3, 4] It is next urged that the court erred in permitting the witness Bedell, on direct examination as plaintiff's witness in chief, to answer the question as to whether there was a better way to locate the light for the purpose of distributing it in and around the steps in the north center aisle. steps constructed with tread at 12 and 16 | fore, are not open to the objections urged by inches, respectively, as aforesaid, and negli- appellant. gently maintained by defendant without sufficient candle power light to expose and disclose said condition. That while plaintiff was so attempting to descend said aisle she was deceived by the irregular and uneven condition of said steps, and was tripped thereby and thrown with great violence, whereby her head was injured and her forearm broken. And plaintiff charges that she did not know of the uneven and irregular condition of said steps, and did not see, and could not see, the condition of said steps because of negligent failure of defendant to furnish sufficient light to expose and disclose the condition of said steps." That by reason of said injury plaintiff has contracted certain described injuries, for which she asks damages. [1] It appears from the averments of the complaint that appellant was negligent in maintaining steps in the aisle of its opera house in an irregular and uneven condition, without providing lights of sufficient power to disclose such condition, and that such negligence proximately caused appellee's injury. The complaint states facts sufficient to bar another cause of action; and, since appellant did not demur to it, this is all that is necessary. Cleveland, etc., R. Co. v. Beard (1913) 100 N. E. 392, and cases cited. By instruction 5 the jury was told that plaintiff, to recover, must establish that she was injured as alleged in the complaint; that the defendant was negligent as alleged in the complaint, and such negligence was the proximate cause of the injury; and that she was damaged by reason of such injury. By instruction 6 it was told that if she failed to establish any one of these propositions she could not recover; but if she established each of them she should recover, unless the jury should find her guilty of negligence proximately contributing to her injury, in which latter case she could not recover. One who conducts a theater for reward or profit, to which the general public are invited to attend performances, must use ordinary and reasonable care to make the premises as reasonably safe as is consistent with the practical operation of the same. Appellant's theory of defense in this cause was that it had provided a sufficient number of lamps to light the theater. Appellee introduced evidence to show that the aisle was dark, and to show where the lamps provided were located. Appellee's counsel then asked the above question of the witness Bedell, as an expert on lighting and architecture, to show that it was possible to make the aisle light, stating to the court, as a justification for the question, that if the aisle was so dark as to be dangerous, and it could have been made light, then it was negligence to fail to make it light. We think this question was proper. [5] However, the jury found, in answer to interrogatories, that it was dark in the aisle, and that a person could not see the steps; also that appellant negligently failed dle power to light up the gallery or disclose and omitted to furnish light of sufficient canthe condition of the steps, and because of to see their condition; also that all the such omission or failure plaintiff was unable lamps which were provided were not lighted, steps made them unsafe to one exercising and that the unevenness in the tread of the in failing to furnish light of sufficient canordinary care. If the appellant was negligent dle power-that is, in the amount of light which it furnished-it is immaterial where the lights provided were located; and if the lamps were not lighted, certainly it could make no difference where they were located. It thus appears from the answers to interrogatories that the evidence objected to did not influence the verdict; therefore it could not harm appellant, even if it had been improperly admitted. Judgment affirmed. [2] It is urged that instruction 6 was mandatory, and was prejudicial to defendant, in that it omitted the element of assumption of the risk. We are of the opinion that the doctrine of assumption of the risk has no application to the case made by appellee's complaint, nor to the evidence introduced in the cause. Indianapolis Abattoir Co. v. Temperly, 159 Ind. 651, 64 N. E. 906, 95 Am. St. Rep. 330; Cumberland, etc., Co. v. Hatter, 44 Ind. App. 625, 89 N. E. 912. This doctrine could not apply to this case under the holding in PARTENHEIMER v. SOUTHERN RY. CO. Indiana, etc., R. Co. v. O'Brien, 160 Ind. 266, 65 N. E. 918, 66 N. E. 742, relied upon by ap- (Appellate Court of Indiana, Division No. 2. pellant; for it appears in evidence, without contradiction, that appellee had never been in the opera house before, and had no knowledge or notice of the condition of the steps, and the jury found that she was unable to see their condition. The instructions, there et al. (No. 7,798.) March 14, 1913.) 1. APPEAL AND ERROR (§ 1068*)—HARMLESS ERROR-INSTRUCTIONS. brakeman's death showed that the engineer Where the evidence in an action for a was not guilty of negligence as charged, so as to make the company liable, any error in in structions on contributory negligence or as-saw, or could have seen, it by the exercise of sumed risk was harmless. ordinary care; and that he negligently failed [Ed. Note.-For other cases, see Appeal and to obey the signal, and carelessly and negError, Cent. Dig. §§ 4225-4228, 4230; Dec. ligently failed to slacken the speed of the Dig. 1068.*] train, and continued to operate said train at 2. APPEAL AND ERROR (§ 1070*)-HARMLESS a high rate of speed until it struck said flat ERROR-REFUSAL OF INTERROGATORIES. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. 8 1070.*1 Where the answers to interrogatories sub-cars with such force that it threw decedent mitted showed that defendant was not negligent from the car where he was standing, and as claimed, there was no prejudicial error in thereby caused his death. The second pararefusing to submit other interrogatories, the answers to which, however favorable to appel- graph proceeds upon the theory that the lant, could not have changed the result. engineer was unable to see the signals given him by the brakeman on account of a sharp curve in the spur track and high piles of lumber on both sides which obstructed his view, and that he ran the train at a rate of speed that was negligent in view of the fact that he was unable to receive the necessary signals, and in view of the further fact that he knew that Oskins was standing on the box car in a place of danger, and further knew that the track was likely to be obstructed by cars standing thereon. Appeal from Superior Court, Vanderburg County; A. Gilchrist, Judge. Action by Philip Partenheimer against the Southern Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed. Lindsey & Bock and Tweedy & Lindsey, all of Evansville, for appellant. Alex P. Humphrey and Edward P. Humphrey, both of Louisville, Ky., and John D. Welman, Philip W. Frey, and George R. De Bruler, all of Evansville, for appellees. LAIRY, J. Appellant, as administrator, brought this action to recover damages for the death of Raymond Oskins. The verdict and judgment in the trial court were in favor of the defendant. At the time of the accident which caused the death of Raymond Oskins, he was employed by appellee as head brakeman on a freight train, and he, with the other members of the train crew, was engaged in switching cars on a spur track at Boonville, Ind. The locomotive headed in on the spur track pushing a box car which was coupled on in front of it; the purpose being to pick up a car of logs and some flat cars which were standing on the spur track. After coupling the box car to the car of logs, the head brakeman gave a signal to come ahead, then climbed to the top of the box car and stood near the front end for the purpose of giving signals. The train continued to move north on the spur until it came in contact with certain flat cars which were standing at the north end of the spur. A coupling was then made by brakeman Jeffries, after which the head brakeman, Oskins, was found dead under the north truck of the box car. It is the theory of the plaintiff that Oskins was killed by being thrown from the top of the box car, by force of the impact, when the train came in contact with the flat cars. The complaint is in two paragraphs, both of which are based upon section 8017, Burns 1908. The first paragraph alleges, in substance, that plaintiff's decedent, while standing on the top of the box car, gave a signal to the engineer, which meant to slacken the speed of the train; that the engineer understood the meaning of the signal; that he We are asked to reverse the case upon the ground that the court erred in overruling appellant's motion for a new trial. The first question presented by appellant under this assignment of error is the sufficiency of the evidence to sustain the verdict. The evidence shows that Oskins was seen by a number of persons, a short time before the accident, standing on top of the box car near the front end, with his arms outstretched, moving his hands up and down as a signal. There was conflict in the testimony as to the meaning of this signal; but there was evidence to the effect that it meant to come ahead at the same speed, and that it did not mean to stop or slacken the speed of the train. There was also evidence tending to show that the proper signal to slacken speed was to lower the arms toward the body, and that to drop the arms suddenly meant to stop the train. The evidence tended to show that no signal to slacken the speed or to stop the train was given; and the jury so found by its general verdict and by its answers to interrogatories. The evidence also tended to show that the fireman observed the signals given by Oskins and communicated them to the engineer, and that the train was operated in obedience to such signals. The jury found that the train was moving at a speed not exceeding four miles an hour, and that this was not an unreasonable rate of speed, under the circumstances and surroundings; and the evidence tended to show that Oskins had power to have slackened its speed by giving a proper signal for that purpose. While there is some conflict in the evidence, an examination of the record has convinced the court that the evidence not only supports the general verdict, but also every interrogatory which could materially affect it. [1] Objections are urged to a number of instructions given by the court bearing upon the question of contributory negligence and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes stand. 4. CARRIERS ( 322*)-PERSONAL INJURIESVERDICT AND SPECIAL FINDINGS. assumption of risk. In view of the facts | special answers, and if the verdict is not in irfound by the jury in answer to interrogato- reconcilable conflict with the answers it must ries propounded by the court, it is quite evi[Ed. Note.-For other cases, see Trial, Cent. dent that any error in these instructions Dig. 88 857-860, 875, 877, 878; Dec. Dig. § could not have harmed appellant. The facts 359.*] so found clearly show that the engineer was not guilty of the negligence charged in either paragraph of complaint. This being true, it was not material whether or not plaintiff's decedent was guilty of contributory negligence. The giving of these instructions could not have influenced the jury upon any questions other than contributory negligence and assumption of risk; and, as these questions were not important in the light of the answers to the interrogatories, an instruction relating thereto, even if erroneous, was harmless. In an action for personal injuries, special stopped 30 seconds, which was not a reasonable findings that the station was called, the train time for plaintiff to alight, that it was moving when she reached the car platform as she knew, that its speed was three miles an hour and was increasing as she descended the steps, that there was no unusual jerk of the train when it started, but an unusual jerk while she was on the steps, that she descended the steps to alight, and was at the time confused and excited, and that she did not step off, but was forced to jump by a sudden lurch of the train, were not in irreconcilable conflict with a gen For the reason just stated, any error com-eral verdict for plaintiff. mitted by the court in refusing to give instructions tendered by plaintiff, relating to the law of contributory negligence and assumption of risk, could not have been prejudicial to appellant. In view of the answers to the interrogatories, we are convinced that errors pointed out in the giving or refusal of other instructions were harmless. The court refused to submit to the jury certain interrogatories requested by plaintiff. Some of these were properly refused for the reason that they were not in proper form. [Ed. Note.-For other cases, see Carriers, Dec. Dig. § 322.*] 5. CARRIERS (§ 321*)-INJURIES TO PASSENGERS--INSTRUCTIONS-CARE REQUIRED. [2] The others were of such a character that no answer thereto, however favorable to plaintiff, could have changed the result. The error of the court, if any, in refusing to submit these interrogatories was harmless, in view of the answers made to those submitted. Under the facts as shown by the answers to interrogatories, no different result could have been reached. An instruction, in a passenger's action for injuries, that it was the duty of defendant's servants to see and know at the time that no passenger was in the act of alighting before the signal to the engineer and the starting of the train, was erroneous in that it did not distinguish between the duty to do a certain thing and the care necessary in the performance of such duty. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*] 6. CARRIERS (§ 322*)-PERSONAL INJURIESEFFECT OF FINDINGS. cated on negligence in failing to stop a train In an action for personal injuries, predilong enough to enable plaintiff to alight and in failing to have a servant on the ground or the platform when plaintiff came out intending to alight, findings that the stop of 30 seconds was not a reasonable time for plaintiff to alight, and that she was forced to jump to the plat Finding no reversible error in the record, form by a lurch of the train, amounted to a the judgment is affirmed. Judgment affirmed. SOUTHERN RY. CO. v. ELLIS. (No. 7,861.) (Appellate Court of Indiana, Division No. 1. March 13, 1913.) 1. TRIAL (8 343*)-GENERAL VERDICT-OPER ATION. A general verdict necessarily covers the whole issue and determines every material fact against the party against whom it is rendered. (Ed. Note.-For other cases, see Trial, Cent. Dig. § 809-812; Dec. Dig. § 343.*] 2. TRIAL (§ 359*) — SPECIAL FINDINGS-INCONSISTENCY WITH GENERAL VERDICT. To enable a losing party to successfully interpose special findings as a ground for judgment in his favor, they must be in such clear antagonism to the general verdict that they cannot coexist. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 857-860, 875, 877, 878; Dec. Dig. 359.*] finding that the proximate cause of the injury was the starting of the train before she had time to alight and the lurch forcing her to jump. [Ed. Note.-For other cases, see Carriers, Dec. Dig. § 322.*] 7. CARRIERS (§ 303*)-DUTY TO PASSENGERS -TIME FOR ALIGHTING. A carrier is bound to stop a reasonable time to allow a passenger to alight, and failure to perform such duty is negligence making it liable for injuries proximately resulting therefrom. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.*] 8. APPEAL AND ERROR (§ 1068*)—HARMLESS ERROR INSTRUCTIONS APPLICABLE TO ISSUE NOT DETERMINED. Where it appeared from the answers to interrogatories that the general verdict for plaintiff was returned on the plaintiff's charge of negligence in failing to stop the train a sufficient time to enable her to alight, error, in an instruction, applicable only to the charge of negligence in not having a servant on the ground or platform as plaintiff attempted to alight, was harmless. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*] 3. TRIAL (§ 359*)—SPECIAL FINDINGS-CONSTRUCTION IN FAVOR OF GENERAL VERDICT. All reasonable presumptions will be indulged in favor of a general verdict and against 9. TRIAL ( 260*)-INSTRUCTIONS—INSTRUC- | thereof, and while in this position, without TIONS ALREADY GIVEN. In a passenger's action for personal inju- solely on account and by reason of the careany fault or negligence upon her part, but ries from defendant's negligence in not stopping for a reasonable time to allow her to alight and in not having its servants standing on the platform or ground as she was attempting to alight, where the court instructed that, if the train was in motion when plaintiff reached the car door, she should have returned to her seat and remained there until the car stopped, that a passenger is as much bound to use care to avoid injury as a carrier is bound to use care to prevent injury, and must act as a person of ordinary prudence would under the circumstances in order to recover, the refusal of defendant's requested instructions that on the facts detailed plaintiff, as a matter of law, was guilty of contributory negligence and that if a reasonable, prudent woman, under the circumstances detailed, would not have undertaken to alight, plaintiff was guilty of contributory negligence, was not error. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 260.*] Appeal from Circuit Court, Dubois County; Joshua Jump, Special Judge. Action by Amanda L. Ellis against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Alex P. Humphrey and Edward P. Humphrey, both of Louisville, Ky., John D. Welman, of Evansville, Thomas Duncan, of Princeton, and Richard M. Milburn, of Jasper, for appellant. Cox & Armstrong, of Huntingburg, and B. W. Pickhart, for appel lee. lessness and negligence of the defendant as hereinafter charged in suddenly starting said train with great force and velocity, she was thrown off and from said steps down to and upon the ground," sustaining injuries specifically described. Appellee charges appellant with negligence "in failing to stop said train a sufficient length of time to enable her to alight therefrom down to and upon the ground, and that defendant was further guilty of carelessness and negligence in its servants failing to stand upon the ground or upon the platform of said coach in such way and manner whereby they could see plaintiff distinctly from the time she came out of the coach in which she had been riding to and upon the platform and steps of said car; defendant's servants well knowing at the time they started the train that she was attempting to alight therefrom." The court overruled appellant's demurrer to the complaint, and an issue of fact was formed by answer in general denial. The cause was submitted to a jury, and verdict returned in favor of appellee. With their general verdict the jury returned answers to certain interrogatories. Appellant moved the court for judgment on the answers to interrogatories, notwithstanding the general verdict. This motion was overruled, and judgment was rendered on the general verdict. Appellant's motion for a new trial was overruled, and an appeal was prayed and granted to this court. The errors assigned are: (1) Overruling the demurrer to the complaint; (2) overruling motion for judgment on the answers to interrogatories; (3) overruling motion for a new trial. general verdict show that appellee was guilty of contributory negligence, and that said answers are in irreconcilable conflict with the general verdict. ADAMS, J. Appellee, accompanied by her husband and two small children, became a passenger on one of appellant's trains at French Lick, Ind., having a ticket which entitled her to be carried to Cuzco, a station in appellant's line of railroad, a few miles south of French Lick. Appellee charges in her complaint that, when the station of Cuzco was announced and the train had come [1-4] The first specification of error is to a stop, she went forward to the door of not relied on, nor is it insisted that the the coach in which she was riding, for the proof does not disclose negligence on the purpose of leaving the train; that the train part of appellant. Under the second specstopped for a moment only, and when appel-ification of error, appellant urges that the lee reached the platform of the coach the answers to interrogatories returned with the train was slowly moving forward; that, believing that the train was about to stop a few feet south of the place where the first stop was made, appellee proceeded carefully and cautiously down the steps, holding to the handrail attached to the platform of the coach, intending to alight when the train came to a full stop; that, while standing on the second step, "defendant, by and through its agents and servants in charge of said train, negligently and carelessly suddenly started said train with a heavy lurch and jerk, while she was carefully and cautiously making her way down from the platform there was no unusual jerk of the train when to and upon the steps, defendant knowing it started, but there was an unusual jerk at said time that she was intending to get while she was on the coach steps; that she off of the train at Cuzco and knowing at went down the steps for the purpose of the time that she was still on the platform alighting, and at the time she was confused or steps of said car attempting to get off and excited; that she did not step off on •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes By their special verdict, the jury found that the station was called; that the train stopped 30 seconds, which was not a reasonable time for plaintiff to alight; that the train was moving when she reached the coach platform, and she knew it; that the speed of the train was three miles an hour and was increasing as she descended the steps leading a four year old child; that |