from which this appeal. Appellant first contends that the court erred in overruling its motion for judgment on the jury's answers to interrogatories propounded to it. The jury specially found by these answers, stated in narrative form, that the crossing at which the accident occurred was in the country, outside of any municipal corporation; appellant's single track railroad crossed the highway at grade in a southwesterly and northeasterly direction at an angle of about 45 degrees; there were other tracks in the vicinity of the crossing; appellee's decedent was driving a Ford truck southward to said crossing, and there was a collision between said truck and appellant's passenger train which was running to the southwest, on September 25, 1925, at about 6:51 o'clock in the morning; it was full daylight, and the day was bright and clear; the decedent had good eyesight and good hearing; there was a whistling post 80 rods northeast of the crossing, before reaching which and less than 100 rods from the crossing, appellant's engineer sounded the whistle by giving two long and two short blasts and the bell was ringing continuously thereafter; the train was being operated at a speed of 35 to 40 miles per hour; before the collision, and when the engine was approximately 150 feet northeast of the crossing, the engineer sounded several short blasts of the whistle, and immediately applied the emergency brakes, which brakes were in good condition; immediately preceding his death and as the decedent was driving south on the approach to the crossing 200 feet from the crossing he could have looked to the northeast and had a clear view of the track at all points for 440 feet; 100 feet from the crossing, he could have had a clear view for 575 feet; when 50 feet from the crossing, he had a clear view for more than 500 feet; when 46 feet from the crossing, he could see a person standing on the track 1,000 feet to the northeast; when 40 feet from the crossing, he had a clear view of the track for more than 1,000 feet to the northeast; and when 35 feet from the crossing, he had a clear view of the track for more than one-half mile; as he approached the point where he was struck, had he diligently and carefully looked and listened for the approach of the train, he could have heard or seen it in time to have avoided the accident; when the truck was 30 or 40 feet from the track, it was moving about 7 miles per hour; there was an operator's house or shanty north of the track on the right of way about 434 feet from the center of the highway; there were other buildings between said shanty and crossing-a station sign; there was a railroad sign on the south side of the track and east of the highway, reading, "Railroad Crossing Danger," and 300 feet north of the crossing and adjacent to the traveled portion of the highway, there was

a sign bearing the letters "R. R."; the decedent was familiar with the crossing; the track was straight for more than a half mile, and the nearest tree to the track was 1346 feet north of it; the engineer, upon discovering that the truck would not stop to permit the train to pass, applied the emergency brakes; the engineer was the only person provided with devices with which to stop the train; the emergency brakes on the engine were connected with the train, and there was no other device with which to make a quick stop; at the time of the accident, the truck was equipped with brakes which were in good working order.

[1] It is well established, and conceded by both parties, that in ruling upon a motion for judgment on answers to interrogatories notwithstanding the general verdict, the court will look only to the pleadings, in this case the complaint and answer, the general verdict, and the answers to the interrogatories. Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 Ν. Ε. 235.

[2] And it is a well-settled rule that, to justify sustaining a motion for a judgment on the answers to the interrogatories, the conflict between such answers and the general verdict must be such that it could not

be overcome by any evidence admissible under the pleadings. Consolidated Stone Co. v. Summit, supra.

[3] As stated above, there are two charges of negligence in the complaint-the one of operating the train at a high and dangerous rate of speed of more than 50 miles per hour, and the other, of failing to give warning of the approach of the train by whistle, bell, or by any signal whatever. In order that the general verdict and the judgment thereon be sustained, it must affirmatively appear that appellant was guilty of one of the acts of negligence charged in the complaint. It is averred therein that the train was being operated at a high and dangerous rate of speed of more than 50 miles per hour, but it appears by answers to interrogatories that the train was running at the speed of only 35 or 40 miles per hour. It also appears by answers to interrogatories that the country was open, the ground level, and that there were no obstructions preventing appellee's decedent from having a clear view of the track to the northeast had he looked, except such obstructions as a small station house, referred to as a shanty, would make. Under such conditions, it cannot be said that a railroad company is guilty of negligence in operating its train over a country crossing at a speed of 35 or 40 miles per hour. Brooks v. Muncie Traction Co., 176 Ind. 298, 95 N. E. 1006; Wabash R. R. Co. v. MeNown, 53 Ind. App. 116, 99 N. E. 126, 100 N. E. 383.

[4] If there were undisclosed reasons why a speed of 35 or 40 miles per hour was excessive, such reasons should have been averred and proven. Lake, etc., Co. v. Barnes, 166 Ind. 7, 76 Ν. Ε. 629, 3 L. R. A. (N. S.) 778.

[5] Appellee says that, while the answers to interrogatories show that appellant gave the statutory signals, this does not negative the fact that appellant was negligent by reason of its failure to give other signals than the statutory ones. It appears by answers to interrogatories that in addition to the statutory signals the bell was ringing continuously and that, at a distance of about 150 feet from the crossing, appellant's engineer gave a number of short sharp blasts of the whistle, and when he saw that the decedent was not intending to stop for the train, he applied the emergency brakes. It further appears that at about 300 feet north of the crossing there was a railroad sign giving notice of the presence of a railroad, and another at the crossing not only calling attention to the presence of the railroad, but to the fact that it was dangerous. Appellee has not pointed out any other precautions that appellant might have taken, and we do not think of any, the evidence of which was admissible under the pleadings. It clearly appears by the answers to the interrogatories that appellant was not guilty of negligence as charged in the complaint. Having reached this conclusion, we do not need to consider other questions presented by appellant.

The judgment is reversed, with instructions to the court to render judgment in favor of appellant upon the answers to the interrogatories, notwithstanding the general verdict.

DAUSMAN, J., absent.

MERCER v. BAILEY et al. (No. 13238.) Appellate Court of Indiana, in Banc. May 10,

1928.

Master and servant 405(2)-Finding that automobile mechanic, claiming compensation for injury, was not employee of defendants, held sustained by evidence.

Finding of Industrial Board that automobile mechanic, claiming compensation for injuries as employee of defendants, was not an employee, held sustained by the evidence.

Appeal from Industrial Board. Proceedings under the Workmen's Compensation Act by Thomas C. Mercer, employee,

for compensation against J. Frank Bailey and others, employers. Compensation was denied, and the employee appeals. Affirmed.

C. W. H. Bangs, of Huntington, for appellant.

MCMAHAN, J. Appellant filed an application with the Industrial Board for compensation because of an injury which he claims arose out of and in the course of his employment by appellees. The Industrial Board by a majority of its members found that appellant was not in the employment of appellees; that his injury did not arise out of and in the course of his employment by appellees; and denied compensation.

Appellees, as partners, were doing business under the name of the Huntington Overland Company. Appellant testified that at the time of his injury he was employed by appellees; his duties being to repair automobiles. He testified to a state of facts sufficient to justify a finding that he was an employee of appellees, and that he was entitled to compensation.

Appellee J. Frank Bailey, who appears to have been the active member of the firm, testified that, before appellant began work, he had a talk with appellant, and told him they did not hire anybody or pay them any salary; that they would let appellant have the room without rent, they to furnish lights, steam, and electricity, and appellant to give them one-third of what he took in. Appellees kept a separate account of repair work. They did the collecting and paid appellant two-thirds of the money so collected. They had never guaranteed appellant $20 a week, as was testified to by appellant; that, after appellant was hurt, the latter got another mechanic to finish the job appellant was working on at time of injury, and that appellant paid this mechanic. If a customer wanted a car repaired, the witness hired appellant to do it, and a charge of $1 an hour was made for appellant's work. Appellees kept a record of the work done by appellant, the amount collected, sent out some statements to customers for repair work, and on Saturday of each week paid appellant twothirds of the amount received during the week.

Appellant insists that the facts proven show as a matter of law that he was an employee of appellees. But, as it appears to us, the question was one of fact for the Industrial Board. The evidence in our judgment is sufficient to sustain the finding.

The award, therefore, is affirmed.

DAUSMAN, J., absent.

floor and damage a material part of appellees' stock of merchandise. Soon after June 10, appellees moved the undamaged portion of their stock of goods into another building, and, acting under an arrangement made with the real estate agent through whom they had leased appellant's building, they left the damaged goods in the storeroom in appellant's building, and retained possession of the store

room.

Negotiations were had in an attempt to settle the amount of damage, but no settlement was reached. Appellees, after moving the undamaged goods, retained the keys to the building. Two or three months later appellant, without the knowledge or consent of appellees, entered the storeroom through the basement, and removed the damaged merchandise and the lumber, and locked the merchandise up in another room under its control. Appellant makes no claim that the damage to the merchandise was not caused by its negligence, or that the amount of the recovery is too large.

[1] The storeroom of appellant had been rented to appellees through Will R. Lamb, a real estate agent to whom all rent was paid. Under date of June 18, 1925, Lamb, purporting to be acting as the agent of appellant gave appellees a writing stating that he, as agent of appellant had instructed appellees to leave the damaged merchandise in appellant's building without any rental charge until settlement could be made. This writing was over the objection of appellant introduced in evidence. This appellant contends was error. The objection to the introduction of the writing in evidence is that there is no proof that Lamb had any authority to authorize appellees to leave the goods in the room without any rental charge. The inference is that the writing in question was executed by Lamb a few days after appellees had moved the undamaged goods out of the building. Whether Lamb had any authority to execute it, and whether it gave appellees the right to retain possession of the building without payment of rent until appellant had settled the damages caused by the water, are not involved in this action. If appellant undertakes to collect rent from appellees, the question of Lamb's authority to execute the writing and its effect can be properly raised. The court properly instructed the jury that the right of appellees to leave the damaged merchandise in the building without payment of rent was not in issue in this case. While the court might have properly sustained appellant's objection, the introduction of the instrument in evidence does not amount to reversible error.

negotiations. On cross-examination appellant's counsel asked the witness two or three questions, the tendency of which were to elicit the fact that no settlement had been reached. Appellees' objections to these questions were sustained. We are unable to see how appellant was harmed by the action of the court. There was no claim that a settlement had been reached. The only inference to be drawn from the record is that no settlement had been reached. Neither party was claiming there had been a settlement. The court did not err in sustaining the ob jections to these questions.

[3] John Ellerbush, on direct examination, testified as to the fair market value and the retail value of the merchandise in question prior to the damage. He also stated that the market value and retail value were the same. On cross-examination appellant asked what the wholesale price of the merchandise was. The court sustained an objection to this question. In support of the contention that the action of the court in this regard was a harmful error, appellant says that, since the testimony of this witness is all the evidence there was on the question of value, it was entitled to show the wholesale price of the merchandise. Indianapolis, etc., Traction Co. v. Shepherd, 35 Ind. App. 601, 74 Ν. Ε. 904, cited by appellant is not in point.

That was a condemnation proceeding where the landowner had testified as to the value of the land sought to be condemned, and where it was held that on cross-examination he might be asked what he had paid for it. If in the instant case appellees had within a reasonable time prior to the injury to the goods, purchased any of them at retail, it would doubtless have been proper on crossexamination to have asked what he paid for them. But it was not proper to ask concerning the wholesale price.

In Payne v. Moore, 31 Ind. App. 360, 66 Ν. E. 483, 67 N. E. 1005, the witness had testified as to the value of certain personal property, by reference to an invoice made by the witness. It was held proper on crossexamination to ask him to give the market value without reference to the invoice. The court did not err in sustaining the objection and in refusing to permit proof of the wholesale price of the goods in question.

[4] Instruction No. 8, of which complaint is made after calling the attention of the jury to the fact that the second and third paragraphs of complaint were based upon an alleged conversion, told them that the question of good faith was not involved in either paragraph; that a wrongful intent is not an essential element of conversion; that it was sufficient if the owner had been deprived of his property by an act of another assuming an unauthorized dominion and control over

Appellant insists it was acting in good faith in removing the goods in question for the