tion 10 of article 1 of the Constitution of the United States, which prohibits the passing of any 'ex post facto' law or law impairing the obligation of contract." On this appeal he contends that for the same reason said employers' liability act violates the ex post facto clause of the said sections. It is held that the phrase "ex post facto laws" is only applicable to criminal and penal laws, and not to laws like the one in controversy in this case. Cooley's Constitutional Limitations (7th Ed.) 373-376. But, if it were otherwise, what was said by this court on the former appeal as to the contention then made is a sufficient answer to the one now made. This court said (163 Ind. 262, 71 N. E. 218, 660): "It is enough to dispose of this objection to state that it does not appear that there was any such definitive agreement between the parties for the future as would warrant the assertion that any contract right had been impaired." Upon the authority of the opinion on the former appeal, we hold that said amended first paragraph is sufficient, and that the court did not err in overruling the appellant's demurrer thereto. The Appellant next insists that the court below erred in overruling the motion for judgment in its favor on the answers of the jury to the interrogatories notwithstanding the general verdict. The general verdict necessarily determined all material issues in favor of appellee, and it is well settled that, unless the answers of the jury to the interrogatories are in irreconcilable conflict with the general verdict, the court did not err in overruling the appellant's motion for judgment in its favor. The answers to the interrogatories cannot be aided by any presumptions, for the rule is that all reasonable presumptions will be indulged in favor of the general verdict, and none will be indulged in favor of the answers to the interrogatories. special findings of the jury in answer to the interrogatories override the general verdict only when both cannot stand; the conflict being such that upon the face of the record as to be beyond the possibility of being removed by any evidence admissible under the issues in the cause. Johnson v. Gibhauer, 159 Ind. 271, 282, 283, 64 N. E. 855, and cases cited; Indiana, etc., Ry. Co. v. Maurer, 160 Ind. 25, 27, 66 N. E. 156; Southern, etc., Ry. Co. v. Peyton, 157 Ind. 690, 697, 61 N. E. 722; City of Jeffersonville v. Gray, 165 Ind. 26, 29, 74 N. E. 611, and cases cited; McCoy v. Kokomo Ry. v. Light Co., 158 Ind. 662-664, 64 N. E. 92, and cases cited. Appellant claims that the jury's answers to interrogatories show that "appellee entered appellant's employ in 1874 as locomotive engineman; that he served as such for 10 years; that 17 years prior to January 19, 1901, the date when he received the injuries sued for, he was promoted to passenger engineman, and that he served appellant as such continuously up to the time of his injuries; that he took charge of his engine on the morning he was injured at appellant's shops about one mile east of its passenger station, and ran such engine down to the passenger station, where he alighted to get his orders; that he knew of the location and use of appellant's tracks; that the rules of the company required him, after receiving his orders, to go and take charge of his engine; that he received his orders at 3:23 a. m., but that he did not go to his engine, although he had ample time and opportunity; that it was customary for appellant to use the eastbound main track while a train was standing at the passenger platfora on the north-bound track; that the space between the two tracks was sufficient for plaintiff to stand and not be injured by passing trains; that the jury found, in answer to interrogatories 131 and 133, that there is no evidence to show that the appellee could not see and hear the approaching train that struck him in time to have avoided the injury." Counsel for appellant insists that, "when the jury found the facts above stated, they found that apppellee saw and heard the approaching train, because the law assumes he saw and heard it, if the view is obstructed and there is no evidence that he did not see and hear it. If the facts above set out are true, appellee not only assumed the risk which caused his injury but he is guilty of contributory negli gence. Said facts cannot be true and the general verdict stand." It is not necessary to determine what effect, if any, the facts stated by appellant's counsel as found by the jury would have upon the general verdict, for the reason that the jury also found other and additional facts in answers to interrogatories which show that appellee, while going across the northbound main track, or while standing between the two tracks, listened to see if he could hear whether a train of cars was approaching; that he could not have seen the engine and car approaching, if he had looked carefully and diligently; that there was something to prevent appellee seeing and hearing the approaching engine and car which struck him, in time to avoid the injury. In view of these additional facts, it cannot be said that the jury found that appellee's view was not obstructed, nor that appellee saw and heard the approaching train as claimed by counsel for appellant. If said answers of the jury to interrogatories are inconsistent or contradictory, they antagonize and destroy each other and they cannot control the general verdict. Wabash Ry. Co. v. Savage, 110 Ind. 156, 161, 9 N. E. 85; Baltimore, etc., Ry. Co. v. Rowan, 104 Ind. 88, 96, 97, 3 N. E. 627; McCoy v. Kokomo Ry Co., 158 Ind. 662, 665, 64 N. E. 92, and cases cited. If they are so uncertain that their meaning cannot be ascertained, they cannot be used to control the general verdict. Grand Rapids, etc., R. Co. v. McAnnally, 98 Ind. 412, 417, and cases cited. It is clear, 1 under the rules above stated, as established by the decisions of this court, that the facts found by the jury as above set out are not in irreconcilable conflict with the general verdict, which found that appellee was not guilty of contributory negligence. The part of section 7083, Burns' Ann. St. 1901, being section 1 of the act known as the "Employers' Liability Act" (Acts 1893, p. 294, c. 130), under which this action was brought, is as follows: "That every railroad or other corporation except municipal operating in this state shall be liable for damages for personal Injury suffered by any employé while in its service, the employé so injured being in exercise of due care and diligence, in the following cases: Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switchyard, shop, roundhouse, locomotive engine or train, upon a railway," etc. It is evident that the language above quoted from said fourth subdivision of said section describes a class of servants for whose negligence railroads are made liable. In other words, it enlarged the class of vice principals as it had existed before said act took effect, and under the provisions thereof railroads are liable for the negligence of such employés; that is, any person in the service of such company who has charge of any signal, telegraph office, switchyard. roundhouse, locomotive engine, or train upon a railway the same as for the negligence of vice principals. Baltimore Ry. Co. v. Little, 149 Ind. 167, 170-172, 48 N. E. 862; Ind. Union Ry. Co. v. Houlihan, 157 Ind. 494, 499, 60 N. E. 943, 54 L. R. A. 787, and cases cited; Thacker v. Chicago, etc., Ry. Co., 159 Ind. 82, 84-86, 64 N. E. 605, 59 L. R. A. 792. It is clear that the doctrine of assumed risk is not applicable to an action brought, like this, under the part of said fourth subdivision above quoted. To hold otherwise would establish in its full vigor the fellow servant rule, which the statute was intended to abrogate as to the employés mentioned. American Rolling Mills Co. v. Hullinger, 161 Ind. 673, 679, 680, 67 N. E. 986, 69 N. E. 460; Davis v. N. Y., N. H. & H. Ry. Co., 159 Mass. 532, 536, 34 N. E. 1070; Murphy v. City Coal Co., 172 Mass. 324, 52 N. E. 503; Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 South. 440; Southern Ry. Co. v. Johnson, 114 Ga. 329, 40 S. E. 235; St. Louis Ry. Co. v. Touhey, 67 Ark. 209, 54 S. W. 577, 77 Am. St. Rep. 109; 2 Labatt's Master & Servant, § 650, and note; Reno's Employers' Liability Acts (2d Ed.) §§ 249, 250. It is evident that the court did not err in overruling appellant's motion for a judgment in its favor on the answers to the interrogatories. Appellant contends that "the evidence is wholly insufficient to sustain the verdict for the following reasons, and each of them, viz.: (a) That the defendant was, at the time complained of, 'a railroad or or other corporation.' (b) That the plaintiff was, at the time he was injured, at a place where he had a right to be and in the performance of his duties. (c) That plaintiff's injury was the result of any act or omission of any employé of the defendant in the performance of his duties, while in charge of a locomotive engine or train upon defendant's railwɛ y. (d) That plaintiff did not assume the risk which brought about his injury. (e) The evidence conclusively shows plaintiff to have been guilty of contributory negligence. f) No duty is shown to have been violated which the defendant owed the plaintiff. g) There is no evidence to show that if there had been a flagman with a light on the end of the car, or the train had been run slower, or the bell rung, that the plaintiff would have seen or heard the train and would not have been injured. (h) There is no evidence that the plaintiff was ordered to go between the tracks, or that such place was where his duties required him to be. (i) The evidence is undisputed that plaintiff was perfectly familiar with the defendant's tracks and their use, the distance between the tracks, that the engine taken from the incoming train was usually backed east along the east-bound track to the shops, while the train it brought in was still standing at the station on the north-bound track, and that it was dangerous to be between the tracks." It is well settled that a corporation, by a general appearance to an action brought against it, admits its corporate existence, and estops itself from denying the same. Adams Ex. Co. v. Hill, 43 Ind. 157, 162; Ohio Oil Co. v. Detamore, 165 Ind. 243, 247, 73 N. E. 906; Seaton v. C., R. I. & P. Ry. Co., 55 Mo. 416; Chicago & Alton Ry. Co. v. Glenny, 175 Ill. 238, 51 N. E. 896; Perris Irr. Dist. v. Thompson, 116 Fed. 832, 54 C. C. A. 3:6; Gauthier Decorating Co. v. Ham, 3 Celo. App. 559, 34 Pac. 484; Mo. Riv., Ft. Scott & Gulf Ry. Co. v. Shirley, 20 Kan. 64; Baldwin Coal Co. v. Davis, 15 Colo. App. 371, 62 Pac. 1041; U. S. Express Co. v. Bedbury, 34 Ill. 459, 467; 5 Ency. of Pl. & l'r. 90; 6 Thompson on Corporations, §§ 7615, 7646; 10 Cyc. 1347; 3 Cyc. of Evidence, p. 613, and cases cited. If a corporation, by a general appearance, as by filing an answer, admits that it is a corporation and is thereby estopped from denying that it is a corpo ation as alleged in the complaint, it is evident that it is not necessary for the plaintiff to introduce any evidence to prove such allegation. Adams Express Co. v. Hill, 43 Ind. 162. It follows, also, that the court's instruction to the jury that no proof of such allegation was necessary was correct. Го maintain an action under the part of the fourth subdivision of section 7083, supra, appe! ee must have been actually engaged in the se.v the service of the appellant at the time of as aforesaid." the injury. The evidence shows that appellee was, at the time of his injury, in the employ of the appellant as a passenger engineman, and was standing between the west-bound main track and the east-bound main track track of of appellant's road, where he had gone, as he testified, to take charge of his engine when it backed down to be connected with appellant's passenger train, which was over an hour late. It is clear from the evidence that he was actually engaged in appellant's service when injured. Reno's Employers' Liability Acts (2d Ed.) p. 27; Dresser's Employers' Liability Acts, § 13, and cases cited. The jury found in answer to the interrogatories that said engine and car that ran against appellee and injured him was not in charge of Jerry Miller, as claimed by appellant, and that said engine was in charge of said Graver as engineman. engineman. The evidence showed that Engineman Graver was in the service of appellant as such engineman when appellee was injured, and that he was running his engine backward, pushing the mail car that injured appellee. No person was on said engine, when so pushing said mail car backward, except said Graver and his fireman. Appellee testified that said Graver was in charge of said engine. The record does not sustain appellant's contention that there was no evidence that the Engineer Graver was in charge of said train. Moreover, if said Engineman Graver had only been in charge of the locomotive engine, as alleged in the complaint and testified by appellee this would bring the case within the terms of said fourth subdivision. Labatt, Master & Servant, vol. 2, pp. 2037, 2038, 2039; Id. p. 2037, note 12; Fairman v. Boston & Albany Ry. Co., 169 Mass. 170, 177, 47 N. E. 613; McCord v. Commell (1896) H. L. Appeal Cases, 57. At the time of appellee's injury there was in force in the city of Logansport an ordinance which contained four provisions, as follows: (1) "It shall be unlawful for any person to run any locomotive or car at a greater speed than six miles per hour within the city limits." (2) "It shall be the duty of the engineer or other person having charge of any locomotive within the limits of said city to ring the bell before starting such locomotive either forward or backward and to continue the ringing of the bell during the entire time such locomotive or train is in motion while passing through any portion of said city." (3) "Any locomotive engine, railroad car, or train of cars running in the nighttime on any railroad track in said city shall have and keep while so running, a brilliant and conspicuous light on the forward end of such locomotive engine or train of cars." (4) "And shall have and keep some sufficient signal light in charge of some competent person, who shall remain upon the rear end of such locomotive engine, car or train of cars whenever the same shall be backing on any track A penalty was provided in said ordinance for the violation of each of said provisions. The evidence of appellee shows that each of the provisions of said ordinance was violated as alleged in the complaint. The failure, on the part of the appellant and those in charge of said train at the time of appellee's injury, to observe or comply with any one or all of the requirements of said ordinance was negligence per se and appellant was liable to appellee for any injury of which such negligence was the proximate cause, provided he was not guilty of contribtory negligence. Baltimore & O. S. W. Ry. C. v. Peterson Ad., 156 Ind. 364, 367-372, 59 N. E. 1044, and cases cited; Pittsburgh, etc., Ry. Co. v. Lightheiser, 163 Ind. 247, 256, 71 N. E. 218, 660. It appears from the evidence that appellant's railroad at the passenger station in the city of Logansport consisted of two main tracks between Second and Fifth streets, one being the north or west bound main track for trains coming from the east and going west, while the second was the east or south bound main track for trains coming from the west and going east or south; appellant's passenger station was located at and across the south end of Fourth street, but on the north side of the north or west bound track and about 16 feet therefrom; that south of these two main tracks was a side track, connected with the south or east bound main track at a point about opposite the east end of the passenger station and running west parallel with said main track beyond Second street; west of Third street there was a cross-over connecting said two main tracks, the same being used to shift trains or parts of trains from one main track to the other. On the morning appellee was injured he ran his engine from the roundhouse to the restaurant just west of the passenger station on the west-bound main track, his engine being headed to the west. He left his engine in charge of the fireman and went into the restaurant to get a lunch. Before 3:05 a. m., when his train was due, he went upstairs in the passenger station to get his orders, which were issued by the train dispatcher. His orders not being ready, he returned to the restaurant. Later he and his conductor returned to the train dispatcher's office for their running orders and received the same. Thereupon they returned to the restaurant and remained there until the arrival of their train from Columbus, Ohio, at 4:38 a. m., about 1 hour and 30 minutes late; said train coming in on the west-bound main track. The engine, which had a headlight burning on its west or forward end, and the mail car, were cut off from said train and run west on said main track to the cross-over track, and then shifted to the east-bound main track and backed east and stopped on said east-bound main track, clearing the east line of Third street. While said engine and mail car were standing there, appellee's fireman backed his en gine, which had a headlight burning on its west or forward end, to the eastward on the west-bound main track to be coupled to his train, and passed said engine and mail car, at which time and while appellee's engine was still going east said engine and mail car also backed east, the mail car in front, on the east-bound main track, and the northeast corner of said mail car struck appellee, who was standing between the west and east bound main tracks, 50 or 60 feet west of the west end of his train and 90 or 100 feet west of the passenger station, knocked him down, and run over and crushed his right leg and his ankle and foot on his left leg, so that his right leg was afterwards amputated 7 inches below the knee. Appellee testified that it was about 4:20 or 4:25 a. m. when he and his conductor received their running orders; that the weather was very cold, it being 3 or 4 degrees above or below zero; that upon the train being announced he came out of the restaurant and went in a southwest direction around the west end of his train, standing on the west-bound main track, and went between the two main tracks to the place where he was injured; that appellant's tracks are level, with planking between the rails and between the tracks; that when he passed his train the engine and mail car had been cut off and run west on said west-bound main track; that he went to said place to examine the frost cocks on his engine "when she got there," and to see that the engine was in proper shape; that the frost cocks were on both sides of the engine, but he went between the tracks to examine the left-hand frost cock; that he could not very well examine the frost cocks while in the engine, because he could not see them; that when the frost cocks freeze up it is impossible to get water into the boiler; that he had received a letter from the superintendent of motive power three or four days after Christmas directing him to examine the frost cocks of his engine before leaving. It was very dark when he was injured. "You could not see anything hardly." He was facing northwest, looking for his engine. He could see the red light on the tank of his engine from where he was standing. "I was waiting for her to come down. Of course, I was not expecting anything else coming down the track, because of a rule of the company's. I saw the red light on the tank until an object got in front of me that other engine come there. There was no man nor any lights of any kind on the end of the mail car that struck me. 'I don't think the bell on the engine that was pushing the mail car that struck me was ringing at or immediately before the time the car struck me. If it had been ringing, I think I would have heard it. I was looking and listening at the time, and did not hear it." Said mail car pushed by said engine was moving about 10 or 12 miles an hour. The distance between the two main tracks was 7 or 8 feet. The mail car pro jected over the rail about 2 feet, leaving a space between the two cars of about 3 or 4 feet. "I had no notice or knowledge of the approach of said mail car until just about the time it struck me I saw it. It was so close that I could not get out of the way." We cannot say that the evidence of the appellee did not authorize the jury to find that the negligent acts of those in charge of said locomotive and train in violating the provisions of said ordinance was the proximate cause of appellee's injury. His sense of sight and hearing was good. He looked and listened, but did not see or hear the approaching engine and mail car. They were approaching him at a speed of from 10 to 12 miles an hour. At the same time his engine was backing east on the westbound main track to be coupled on the westbound train. The mail car was being pushed in the darkness without ringing the bell on the engine and without a signal light in charge of a competent person upon the rear or east end of said mail car. Under the circumstances it cannot be said that there was no evidence that the violation of the ordinance above set out was the proximate cause of appellee's injury. The jury by the general verdict so found, and, as there was evidence to sustain such finding, under the well-settled rule we cannot disturb the same. Appellant insists that appellee was off his engine in violation of a rule of the company when he was injured, and was therefore guilty of contributory negligence. The violation of a rule of the employer will not prevent a recovery by him, unless the violation of such rule proximately contributed to his injury. Appellee testified that he was at the place where he was injured for the purpose of examining the frost cocks of his engine when it backed up; that he had been directed by the superintendent of motive power to examine them before leaving. Whether or not he was guilty of contributory negligence in so being where he was when he was injured was a question for the jury, and it was properly submitted to them for determination, and we cannot say, from an examination of the evidence, that there was not evidence to sustain the finding that he was not guilty of contributory negligence, even if the burden of proof as to said issue were on him, instead of appellant. Appellant invokes the "look and listen rule," applicable to travelers at railroad crossings; but that rule does not apply in all its strictness to railroad employés, whose employment requires them to remain on or about the track. Baltimore, etc., Ry. Co. v. Peterson, Adm'r, 156 Ind. 364, 374, 59 N. E. 1044. Appellant also contends that, as the evidence shows that appellee was in the employ of appellant as engineman from 1874 until January, 1901, when he was injured, he cannot recover in this action because the employers' liability act of 1893 impairs the obligation of said contract, and is therefore in violation of the provisions of the state and In the course of his testimony, and in ex- There was no error in admitting in evidence Appellant says in its statement of points, in It quest that it be given. If he fails to do Appellant complains of an instruction that Over the objection of the appellant the. |