more specific and point out the particular request to which it is

intended to apply.

The judgment should be affirmed, with costs.
All concur.

Judgment affirmed.

See notes, 6 Am. and Eng. R. R. Cas. 123, 191.

PITTSBURG, C. AND ST. L. R. R. Co.

v.

CATHARINE SPANIER.

(Advance Case, Ind. Dec. 20, 1882.)

This suit was brought against the railroad for injuries sustained by the appellee by the wrongful act of the company's agent in placing a hand-car on a bridge, which was part of a highway crossing a ditch, within the limits of the right of way of the railroad. The hand-car was placed on the bridge so that a team could not drive over, and the plaintiff was driving over the road on a dark night and received the injuries complained of by being thrown off the bridge by reason of the hand-car. A jury returned a verdict for the appellee of $2500. The chief questions presented in the case arise on the giving and refusing of instructions. His honor reviews them at length and holds that taken together they fully and fairly stated the law to the jury, and those refused were rightly refused. (75 Ind. 511.) The jury has a very broad discretion on the subject of damages, and courts will not interfere with the verdict of a jury, on the ground of excessive damages, unless the damages are so great as to appear to be outrageous, or such as indicate that they were the result of partiality or prejudice, and not of deliberate judgment. It cannot be said that the damages assessed in this case were excessive. (73 Ind. 568; 74 Ind. 520; 84 Ind. 261.)

N. O. Ross, attorney, for appellant.

BICKNELL, COM.-This suit was commenced in the Lake Circuit Court, and was taken to the Porter Circuit Court by change of It was brought by John Spanier and Catharine his wife, for injuries sustained by Catharine by the wrongful act of the defendant in placing a hand-car on a bridge which was part of a highway crossing a ditch within the limits of the defendant's right of way. The complaint alleged that the defendant on a dark night negligently, wrongfully, unlawfully and wilfully put the hand-car on the bridge so that their team could not pass over the bridge where the plaintiffs were travelling along the highway in a twohorse wagon, without notice of the obstruction, and unable to see it because of the darkness, and that in trying to drive over the bridge, their wagon, without any fault of theirs, struck the hand

car, and with the plaintiffs was thrown off the bridge, breaking an arm and dislocating a shoulder of the plaintiff, Catharine, and producing internal injuries by which she was confined to her bed for six months, and permanently disabled from attending to her household duties, to the damage of the plaintiffs $3000.

The suit was dismissed on plaintiffs' motion as to John Spanier. The defendant answered in two paragraphs.

1. The general denial.

2. As to the permanent injuries, that they were the result, exclusively, of said Catharine's gross negligence in failing to take proper care of herself.

There was a reply in denial of said second paragraph.

A jury returned a verdict for the plaintiff with $2500 damages. The defendant's motion for a new trial was overruled, judgment was rendered on the verdict, and the defendant appealed. The error relied on is overruling the motion for a new trial.

The reasons assigned for such motion were:

1. Permitting the plaintiff to ask George Foster, and in permitting him to answer the following question:

"What did you do, in the fall of 1879, with reference to clearing off the right of way of rubbish and dry grass by fire?" His answer was, "I burnt off some ties and rubbish and dry grass. I got orders to do it every fall from the railroad company.'

There had been testimony tending to show that the bridge was on a public highway which crossed the railroad; that there was a ditch on each side of the railroad within the limits of the defendant's right of way; that the right of way was one hundred feet wide; that said ditches were from four to six feet deep and were crossed by plank bridges about fourteen feet wide; that the railroad was six feet higher than the level ground on each side, and that there was grass growing on each side of the right of way, and that the defendant had made the bridges about sixteen years before, and had always kept them in repair until the last spring, when the township trustee took charge of them; that George Foster was the defendant's section-boss for that part of the railroad, and had charge of the hand-car, which he kept at the place where he lived.

It was competent for the plaintiff to show that Foster's duty was to burn off the dry grass and rubbish on the right of way, to prevent fire from sparks spreading over to the grass-lands on each side, and then to show that, in the performance of that duty, he or his hands had negligently left the hand-car in the highway and partly on the bridge.

There was no error in permitting said question and answer.

The second reason for a new trial is the refusal by the court of instructions Nos. 2 and 4, asked for by defendant. No. 2 was as follows:

Second. "If you find that George Foster was a section foreman on defendant's road, and had charge of the hand-car that caused the injury, and that Jacob Moss, one of the section men who worked under him, went with John Triner and his employees, after working hours, and after said Moss had quit working for defendant for that day, and placed the hand-car in the highway as complained of, while assisting John Triner to burn off the right of way to protect his hay, said Moss would not be then in the service of the defendant, nor would defendant be liable for his act in placing or assisting to place said hand-car upon the highway."

The question here was whether the hand-car was in charge of the section-boss and his hands or in charge of John Triner; this was a question of fact to be determined by the jury upon all the evidence; whether the grass was burned at night, after ordinary working hours was not material, if it was done under the direction of the section-boss in fulfilment of his duty to the defendant. It would have been error to tell the jury that, if the facts stated in this instruction were proved, "said Moss would not be in the service of the defendant," because notwithstanding such facts the other evidence might satisfy the jury that the work was reaily done by the section-boss and that he directed Moss to take the hand-car and do it; the section-boss had testified that he burned off that rubbish and dry grass under the order of the defendant. There was no error in refusing this instruction. Instruction No. 4, asked for by defendant, was as follows:

"One of the important questions is, whether the defendant, by its agents or employees, placed the hand-car that caused the injury in the highway? The plaintiff alleges that it did, the defendant denies it; this puts the burden of proof to establish that fact, by a preponderance of the evidence, upon the plaintiff, and if find that the proof is equally balanced on this question then you should find for the defendant."

you

There was no error in refusing this instruction because the court gave other instructions upon the same subject, equally favorable to the defendant, as follows: The court, in its first instruction, after stating the three essential questions of fact in the case, one of which was, "Did the defendant put the hand-car on the bridge as charged?" told the jury that, "these issues are made by the plaintiff, and the law is that, she must prove each material allegation of her complaint by a preponderance of the evidence." After telling the jury that they cannot find for the plaintiff without a preponderance of the evidence in her favor upon a stated question, it would be mere surplusage to add, if there is no preponderance you should find for the defendant. Blizzard v. Applegate, 77 Ind. 516. The third reason for a new trial is, that the court erred in giving instructions Nos. 2, 3 and 4.

The second instruction is as follows:

Second. "A railroad company is liable for the acts of its employees or servants, done in the prosecution of the company's business and within the scope of the authority given them. And so one of the important questions you are called on to decide is, whether the defendant, by its agents or employees, placed the hand-car that caused the injury, on the highway? The true test is not the form of the employment, whether by the day or by the month, but whether the men, who left the car on the highway, were under the control and direction of the defendant, so that they were its servants and not the servants of another."

The objection made to this instruction is, that the words "were under the control and direction of the defendant " were misleading, because not confined to the time of the act done, nor to an act within the scope of the employment. This objection cannot be sustained; the instruction clearly refers to no other time than the time of the act done, and to no other business than the business of the company within the scope of the employment of the servants. The third instruction given by the court is:

Third. "Evidence has been introduced tending to prove that one Foster had charge of a section of the defendant's road, extending over the place of the injury, and that he was charged with the duty of burning off the dry grass and rubbish along the right of way, at such times and under such circumstances as he thought best and proper for doing such work; and that at the time of the injury one or more men under his charge as section men, together with others not under his control, took the car from Schererville to the place of the alleged injury, and there put it off in the highway while they were engaged in burning off the defendant's right of way, by reason of which the injury occurred. On this I instruct you, that if you find from the evidence that the defendant, by its section-boss, or those under his charge, were at the time engaged in the business of burning off dry grass on its right of way, and that this work was required by the defendant from such sectionboss under his general employment, and at the time of the injury he, or those under his direction, were engaged in performing such work, then the presumption arises that he was acting under the instructions of the defendant, and the burden of proof would be on the defendant to show that they were not so acting."

The objection to this charge is, that the court had no right to say what the evidence tended to prove. The language of the court is "there was evidence tending to prove" and "if you find from the evidence." The court had a right to do more than that; it might have recapitulated the evidence and have stated what it might conduce to prove, leaving its weight to be determined by the jury. Ball v. Cox, 7 Ind. 453, 458. The court has no right to say what the testimony proved, nor to assume that anything is proved, but may say that there was testimony tending to prove," when the

jury are distinctly told, as they were in this case, that they must determine for themselves what actually was proved. There was really no conflict as to any of the matters which this instruction stated the evidence tended to prove, so that the instruction, even if erroneous, could have done no harm.

It is also objected that the latter part of this instruction told the jury that the burden of proof in the case was changed from the plaintiff to the defendant, but that is not the meaning of the language; the statement is, that if the jury should find from the evidence certain specified facts, they might infer that the work was done under the instructions of the defendant, unless such presumption was overcome by the testimony on behalf of the defendant. The substance of it is not that the burden of proof in the cause is changed from the plaintiff to the defendant, but that where the plaintiff's evidence makes out a prima facie case, that is sufficient, unless it is destroyed by the defendant's evidence. Meikel v. The State, etc., 36 Ind. 355, 359; Hayes v. Fitch, 47 Ind. 21; Fay v. Burdett, 81 Ind. 434, 443.

There was nothing in this instruction apt to mislead the jury, or warranting the reversal of the cause. Browning v. Hight, 78 Ind. 257; Backus v. Gallantine, 76 Ind. 367.

The fourth instruction given by the court was:

Fourth. "If you find for the plaintiff you will be required to determine the amount of her damages. On this subject I instruct you, that in estimating her damages you will consider her bodily pain and suffering occasioned by the injury, or any sickness resulting from the injury; and in case you find that the plaintiff has not yet recovered from her alleged injuries, or that by such injuries she has to any extent been permanently disabled, then you should take such facts also in consideration in estimating her damages, to which you may add such an amount as you, in the exercise of a sound discretion, may think will be a just compensation for her anxiety and distress of mind as are fairly and reasonably the plain consequences of the injury complained of."

There was no error in this instruction. Wright v. Compton, 53 Ind. 337; The City of Indianapolis v. Scott, 72 Ind. 196.

The instructions taken together very fully and fairly stated to the jury the law applicable to the evidence. Colee v. The State, 75 Ind. 511. The fourth cause for a new trial was surprise on the trial which ordinary prudence could not guard against.

It appears that some agent of the defendant had been in communication with one of the plaintiff's witnesses, and had procured from him a written statement of what his testimony would be; the statement was, "John Triner sent me to George Foster, section foreman, to get the hand-car and go along with them, or if he could not go, he should let us have it."

The witness, when sworn, testified, "John Triner sent me down