(125 N.E.)

taxes, penalty, interest, and costs, and the full amount of principal, interest, penalties, and costs that he had paid out upon said school fund sale. Under this finding the appellee had certainly offered "to do equity" in the premises and such offer was sufficient to entitle her, as to this point, to maintain her action. The conclusions of law are well sustained by the findings of fact.

Appellant in his motion for a new trial assigns seven reasons therefor, but only the first, second, fifth, and sixth are proper assignments, and the others will not therefore

be noticed.

The first reason urged is that the findings are not supported by sufficient evidence; but the appellant has waived all objections, except as to the fifth, sixth, seventh, and tenth of said special findings. We have read the entire record, and there is amply evidence therein to sustain each of said special findings, under the rule as to the burden of proof hereinbefore announced. The court did not err in overruling the motion for a new trial. The judgment is affirmed.

(72 Ind. App. 323)

CITY OF INDIANAPOLIS v. BAKER.* (No. 10126.)

Reversed, with instructions to grant new
trial.

W. Hohlt, Walter Myers, and Robert A. Ad-
Wm. A. Pickens, Paul G. Davis, Edward
ams, all of Indianapolis, for appellant.
Clyde E. Baker and Wm. E. Reilley, both
of Indianapolis, for appellee.

NICHOLS, P. J. This action was in the superior court of Marion county, by the appellee, by next friend, against appellant, for damages on account of an injury alleged to have been sustained by appellee on a public playground of appellant. The facts as alleged in the second amended complaint are substantially as follows:

Appellee at the time of the commencement of this action was a boy 15 years of age. Appellant maintained within the corporate limits of the city a public playground, where children within said playground a baseball ground or were invited to play. Appellant maintained diamond, where the children of the neighborhood played baseball. On June 25, 1915, appellee, with others, was playing baseball on said diamond, when appellee ran from third base to home base. Said home base consisted of a block or curb, and was round and convex in form on the bottom; said block or curb was unsecured, unstable, and dangerous, and appellant knew of such defective and dangerous condition, or by the exercise of reasonable care should have known. Said appellant placed said

Appellate Court of Indiana, Division No. 2. block at said home base, and negligently per

Nov. 20, 1919.)

1. MUNICIPAL CORPORATIONS

mitted it to remain there. Appellee, while ex851-LIABIL-ercising care and diligence, stepped on said

ITY FOR NEGLIGENCE IN MAINTENANCE OF

PLAYGROUND.

which said block was placed and maintained, block, and, owing to the negligent manner in appellee was injured when he stepped upon it, by being thrown violently to the ground, resulting in a sprained ankle and other injuries. There was a demand for $5,000 damages.

To this complaint a demurrer was filed for want of facts, which was overruled. After issues, the cause was submitted to a jury for trial. At the close of appellee's evidence,

2. MUNICIPAL CORPORATIONS 857-NEGLI- appellant filed a motion that the court direct

GENCE IN MAINTENANCE OF PLAYGRound.

A city which maintained a public park or playground, including a baseball diamond, as a matter of law was not negligent for the use as a base of a piece of stone which injured plaintiff; the stone not having been there the day before the injury, there being no evidence that the city by its servants put it there, or that its servants had any knowledge of its placing as a base, while it had not been there long enough to justify an inference of constructive knowledge, and one of the instructors in charge of the playground had removed it as a base about half an hour before the game.

a verdict for appellant, and a like motion at the close of all of the evidence, both of which motions were overruled. There was a verdict for appellee in the sum of $250. After motion for a new trial, which was overruled, this appeal. Each of the foregoing rulings of the court is assigned as error.

[1] Appellant contends that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it shows that appellee sustained his injuries while playing upon a playground which was established and being operated by appellant, and that in performing such a public servAppeal from Superior Court, Marion Coun- ice it was discharging a governmental power, ty; Theophilus J. Moll, Judge.

in pursuance of a duty imposed by law for Action by Richard Baker, by next friend, the general welfare of the inhabitants, and against the City of Indianapolis. From that in the performance of such duties it judgment for plaintiff, defendant appeals. is not liable for the misconduct or negligence For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied.

(125 N.E.)

of its officers or agents in the discharge of | 568; Town of Lewisville v. Batson, 29 Ind. such official duties, nor for the unsafe condi- App. 24, 63 N. E. 861. This was the condition tion of the grounds used therefor. The du- at the close of appellee's evidence, at which ties of a municipal corporation are classified time there was a motion by appellant for a into those of governmental and those of minis- directed verdict. By appellant's evidence, terial; the first consisting of such as are the which is undisputed, neither of the two inexercise of its sovereign powers, and which structors in charge of the playground placed are in their nature judicial or legislative, the block or curbing at the home base, but depending on the judgment and discretion of one of them removed it, rolling it back under those exercising them, while the second class, the fence about a half hour before the game, as applied to this case, consists of the per- at which time there was another base there, formance of those functions which the mu- a little covered on account of some grading, nicipality has determined, in the exercise which consisted of a board countersunk into of its governmental powers, should be accom- the ground, and flush with the surface. This plished. It is not always easy to distinguish base was described by appellee as the one that the one class from the other. In this case, In this case, was there the day before. One of appellant's appellant first determined that there should witnesses testified that he had received orders be a playground at Ringold place, in the city from appellant's instructors in charge not to of Indianapolis, and as to the character of put the stone there, and one of the instrucequipment therefor, a part of which consisted tors in charge testified that he had issued an of a baseball diamond. This duty was purely order that rocks should never be used for governmental, depending solely upon the dis- bases or plates. With these facts undisputed, cretion of the officers charged with the re- appellant again, at the close of all of the evisponsibility. This duty was the exercise of dence, moved the court for a directed verdict. a governmental power, for which appellant Each of the motions should have been suswas not liable for damages growing out of tained, for there was then no question for it. But having so determined, it was then the jury; it being one of law for the court. charged with the performance of the municipal function which in the exercise of its governmental powers it has adopted. Such performance is a ministerial duty, for misfeasance or negligence in the performance of which appellant is liable for damages resulting in injury. The establishment and main- GRAND TRUNK & WESTERN R. R. v. tenance of such a playground having been determined in the exercise of sovereign power, its maintenance and operation is by virtue (Appellate Court of Indiana, Division No. 2. Nov. 21, 1919.) and force of law, and is absolute and imperative. For the proper maintenance, opera- 1. TRIAL 260(1)-COVERED REQUESTS PROPtion, and supervision of the playground, the city, having established it, must be held responsible, and if its servants or agents are negligent in the performance of such duties, it must respond in damages to those injured by reason of such negligence. The demurrer to the complaint was properly overruled. We cite as some of the authorities bearing on this question Brinkmeyer v. City of Evansville, 29 Ind. 187; Aschoff v. City of Evansville, 34 Ind. App. 25, 72 N. E. 279; 28 Cyc. 1259.

[2] The next question is, were appellant's servants negligent in their supervision of such playground, thereby making appellant liable for damages to appellee? The undisputed evidence shows that the block or curbing involved was not there the day before; there was no evidence that appellant by its servants put it there, or that appellant's servants had any knowledge that it had been placed as a home base, and certainly it had not been there long enough to justify an inference of constructive knowledge. City of Warsaw v. Dunlap, 112 Ind. 576, 11 N. E. 623, 14 N. E.

The judgment is reversed, with instructions to the trial court to grant a new trial.

(71 Ind. App. 397)

GLINSKI. (No. 10092.)

ERLY REFUSED.

It was not error to refuse requested instruc-
tions fully covered by given instructions.
2. APPEAL AND ERROR 901-BURDEN OF

SHOWING APPLICABILITY OF INSTRUCTION
ASKED.

Where an appellant claims that an instruction should have been given, it has the burden of showing that it is applicable to the evidence. 3. APPEAL AND ERROR 701(2)—ABSENCE OF

EVIDENCE FROM RECORD AS AFFECTING RE-
VIEW OF INSTRUCTIONS.

Appellate Court cannot say that the court erred in refusing instructions, the correctness of which depended wholly upon the contents of certain written instruments which appellant has failed to set out in the statement of the evi

dence.

4. APPEAL AND ERROR 928(3)—PRESUMP

TION OF CORRECTNESS OF INSTRUCTIONS IN
ABSENCE OF EVIDENCE.

in instructing that a certain instrument had no
Appellate Court cannot hold that court erred
effect on the liability of the defendant, where
the instrument itself is not set out in the state-
ment of the evidence; the presumption being

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

that the instruction was correct, in the absence | we hold there was no error in the fourth inof a showing to the contrary.

struction given, wherein the court instructed the jury as to the effect of this instrument, and told them that it had no effect on the

liability of the appellant for the loss of the goods mentioned in the complaint. In the absence of a showing to the contrary, we must presume this instruction is correct. Complaint is also made of the eighth instruction, given by the court on its own

Appeal from Circuit Court, La Porte motion. This instruction informed the juCounty; James F. Gallagher, Judge.

Action by Martin R. Glinski against the Grand Trunk & Western Railroad Company. Judgment for plaintiff, and defendant ap peals. Reversed.

ry that under the bill of lading the appellee was entitled to 48 hours after notice of the arrival of the goods to unload them, and that during that period the goods were in the car at the risk of appellant, and that it was the appellant's duty to properly care for

Andrew J. Hickey and Norman F. Wolfe, and guard such goods during that time; that both of La Porte, for appellant. a failure to properly protect such goods would be negligence on its part for which it would be liable.

MCMAHAN, J. This is an action by appellee against appellant to recover damages for personal property alleged to have been stolen while in appellant's possession. There was a trial by jury. A general verdict for appellee, with answers to interrogatories and a judgment upon the verdict for appellee. The only error assigned is the overruling of appellant's motion for a new trial. The complaint is in two paragraphs, the first alleges that appellee delivered to appellant at Griffith, Ind., certain household goods and horses for shipment to Crumstown, Ind., and that appellant failed and neglected to deliver the same to appellee at Crumstown or any other place. The second paragraph contains the same allegations as the first, and also alleges that after the car in which the goods were shipped had arrived at Crumstown, and had been placed on appellant's track for the purpose of being unloaded, appellant failed and neglected to properly guard, protect, care for, and to look after said car, and that the said car was entered by some person unknown, and said property taken therefrom and wholly lost to appellee.

The appellee testified that he rode in the car with the property from Griffith to Crumstown, and after reaching Crumstown he went to appellant's agent and told him he wanted to unload the horses, wagon, and harness, but would leave all of the other goods in the car until he got a room in the house at the farm; that he signed a bill of lading, and the agent gave him the expense bill, and that nothing more was said by either appellee of the agent; that he unloaded the horses, wagon, and harness, closed the door, and told appellant's agent that he was leaving the balance of the property in the care of the company; that he went away and did not return until two days later, and found part of the goods missing.

Appellant's agent at Crumstown testified that the car containing appellee's goods was placed on the unloading track; that appellée came to the office of the appellant after the arrival of the car, and signed a receipt, after which appellee unloaded the horses; that appellee did not say anything to him about leaving the goods in the car.

[5] The question as to whether the property had been delivered to appellee was a question of fact for the jury. If the goods were delivered to appellee, appellant's liability was at an end. If there was no delivery of the goods left in the car, then appellant's liability had not ended. Instruction No. 8 informed the jury that as a matter of

[1] Appellant contends that the court erred in refusing to give instructions 1, 2, 3, and 4 tendered by it. Numbers 1 and 4 as tendered are fully covered by 2 and 3 given by the court. Instructions 2 and 3 tendered were in reference to the construction to be given to the bill of lading and live stock contract under which the property was shipped. [2-4] When an appellant claims that an in-law appellant was in duty bound to care for struction should have been given, it has the burden of showing that it is applicable to the evidence. The appellant contends that the court erred in refusing to give these two instructions, the correctness of which depend wholly upon the contents of certain written instruments, which appellant has failed to set out in the statement of the evidence. No error is therefore shown in the refusal to give these instructions. For a like reason

and guard such goods for a period of 48 hours after their arrival, without any reference to whether the goods had been delivered or not. This instruction would have been correct if it had been limited to the theory that there had not been a delivery of the goods, but in the form given it was error for which judgment must be reversed.

Judgment reversed, with instructions to sustain the motion for a new trial.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

ment for plaintiff, and defendant appeals.

(71 Ind. App. 390)
NEW YORK CENT. R. CO. v. REIDEN- Affirmed.

BACH. (No. 10047.)

Walter Olds and W. H. Schannen, both of

(Appellate Court of Indiana, Division No. 2. Ft. Wayne, and Bertrand Walker, of Chicago, Nov. 21, 1919.)

Ill., for appellant.

Spangler & Nobles, of Albion, and Mountz

1. NEW TRIAL 44(1)-UNTRUE ANSWERS TO & Brinkerhoff, of Garret, for appellee. INTERROGATORIES AS GROUND FOR NEW

TRIAL.

That jury made incorrect or untrue answers to interrogatories returned with the general verdict did not constitute such misconduct of the jury as would authorize a new trial.

2. DAMAGES 39-LOSS OF USE OF THRESHING MACHINE INJURED AT CROSSING RECOV

ERABLE.

In action against railroad for damage to separator at crossing, plaintiff was entitled, as an element of damage, to a fair rental value of the machine, where it was damaged in the threshing season, when there was 29 days' work yet to be done with it. 3. EVIDENCE

587, 595-CONSIDERATION BY

JURY OF WEIGHT OF EVIDENCE.

It is a duty as well as a right of a jury, in rendering its verdict and answering interrogatories, to take into consideration, not only the testimony of the witnesses, but also the facts and circumstances proven by the evidence and that surround the case, together with reasonable inferences that can be drawn therefrom.

4. RAILROADS 398(2)—EVIDENCE SHOWING

NEGLIGENCE OF TRAINMEN AT CROSSING. Evidence held to sustain a finding that trainmen negligently failed to observe plaintiff's separator stalled on a crossing, and to stop the train in time to prevent injury.

NICHOLS, P. J. This action by appellee against appellant is for damages alleged to have occurred by reason of a grain separator belonging to appellee being struck by one of appellant's trains.

The amended complaint is in two paragraphs. In the first paragraph it is alleged that the right of way of appellant crossed at right angle a public road in Noble county, Ind., being the county in which the accident occurred; that it was the duty of appellant to maintain the approach of the public road to and across its right of way in a safe condition, and of such grade as to enable the public to cross the right of way, but that appellant carelessly and negligently failed to so maintain the crossing, and that it permitted the rails of its track to so extend above the planks to such an extent that the wheels of Vehicles in crossing would strike the rails. This condition caused appellee's grain separator to become stalled on the track, and it was struck by a west-bound train of appellant and damaged.

The second paragraph of the amended complaint is similar to the first paragraph, but has the additional averments that, while such separator was thus stalled upon said crossing, one of appellant's west-bound trains ap

5. TRIAL 296(4, 5)-OMISSION IN INSTRUC-proached at a high rate of speed, and at said

TION CURED BY OTHER INSTRUCTION.

In an action for damages to a separator struck by a train at railroad crossing, the defendant cannot complain of an instruction which omitted the element of contributory negligence, where in the preceding instruction the jury was fully instructed with reference to contributory negligence.

time the separator was in view and in sight of the persons operating the locomotive, which was drawing the train continuously from the time that the train was at a point two miles east of said crossing until it reached said crossing, and that the engineer in charge of said engine by the exercise of ordinary care could and would have seen the

6. TRIAL256(13)-DUTY TO REQUEST FULL- obstruction of said crossing and danger of a

ER INSTRUCTIONS.

If an instruction in an action for damages is not as specific as to the elements of damage as it might be, a party who has failed to tender a correct instruction that was more specific may

not complain.

7. APPEAL AND ERROR 1050(1)-HARMLESS

ERROR IN ADMISSION OF EVIDENCE.

In an action for damages to a separator struck by train while stalled at crossing, de

fendant could not have been harmed because

plaintiff was permitted to show the amount of

travel on the road involved.

collision between said engine and said grain separator; that in the exercise of reasonable care the said engine and train could have been stopped by said engineer after it came in sight of said crossing and separator without colliding therewith, but the employés in charge of such train carelessly and negligent- · ly failed to stop said train, and failed to observe the obstruction of said crossing by said grain separator, and carelessly and negligently ran said engine and train against said separator, breaking, damaging and destroying it. At the time of the injury and

Appeal from Circuit Court, De Kalb Coun- damage, appellee was engaged in operating ty; Dan M. Link, Judge.

Action by William Reidenbach against the New York Central Railroad Company. Judg

the separator, it being the season of the year in which threshing was done, and that by reason of the damage and injury to said separator it was impossible for the plaintift

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes