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ground of objection urged by appellant against the sustaining of such motion, and there is no special bill of exceptions saving said question and presenting such objection. There is nothing in the record from which this court can know that appellant presented to the trial court the ground of objection to such motion that he is now urging in this court, or that he in fact made any objection to the sustaining of said motion at the time it was presented, or that he took any steps to have such order vacated until after he had taken the chance of a verdict in his favor on the second trial.

ed to present for our consideration his fourth | The record entry does not disclose the assigned error, no available error is presented for either of two reasons: (1) Neither of said motions presented to the trial court, above indicated, are properly identified by such assignment of error. Appellant's motion was not a motion merely to set aside and vacate the ruling of such court granting a new trial as of right, but such motion also asked to have set aside and vacated the verdict of the jury. Appellee's motion in addition to asking to have appellant's said motion to vacate, etc., stricken out, also asked to have stricken out the italicized portion of ground 27 of his motion for new trial for cause. The assignment of error in this court must identify and present, for the determination of this court, the same question presented and passed upon by the trial court. Mesker v. Bishop, 56 Ind. App. 455, 460, 103 N. E. 492, 105 N. E. 644, and cases cited. (2) The overruling of motion for new trial as a matter of right is not a proper ground for new trial for cause, and hence no error would have resulted from striking out all of the twentyseventh ground of appellant's motion for new trial, supra.

[4] Appellant's said motion to vacate was not made until after the second trial, and hence was too late. If appellant felt aggrieved by the ruling granting appellee a new trial as of right, and "considered that such order was improperly granted," it was his duty under the facts disclosed by the record as hereinafter indicated, in the first instance and "at the first opportunity presented, to challenge such order for any and all reasons" and demand that it be vacated. Barber v. Barber, 156 Ind. 45, 51, 53, 59 N. E. 171, and cases cited; Stanley v. Dailey, 112 Ind. 489, 493, 14 N. E. 375; Hutchinson v. Lemcke, 107 Ind. 121, 126, 127, 8 N. E. 71; Marsh v. Elliott, 51 Ind. 547; Vernia v. Lawson, 54 Ind. 485; Marsh v. Prosser, 64 Ind. 293, 296, 297; Butler University v. Conard, 94 Ind. 353, 354. It therefore also follows that no harm resulted from sustaining that part of appellee's motion which asked to have stricken out appel

lant's said motion to vacate.

[6] Where the cause of action is one in which the losing party is entitled to a new trial as of right, and he has done all that the statute requires him to do, an irregularity in the proceeding, such as is insisted on by appellant, will be deemed to have been waived, where the record shows no objection made to the irregularity at the time such new trial was granted and no effort to set aside such order until after the verdict of the jury in the second trial had been returned. See cases cited, supra; also Inland Steel Co. v. Kiessling, 183 Ind. 117, 120, 108 N. E. 232. Finding no error in the record, the judgment below is affirmed.

(62 Ind. App. 555)

MCGEE v. STOCKTON et al. (No. 8878.)
(Appellate Court of Indiana. June 28, 1916.)
1. APPEAL AND ERROR 725(2) - REVIEW

ASSIGNMENT OF ERROR - MEMORANDUM ON
DEMURRER.

No question is presented for review by an ing of demurrers, which does not set out the assignment of error complaining of the overrulmemorandum filed with the demurrers.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3004; Dec. Dig. 725(2).] 2. MASTER AND SERVANT 318(2) - LIABILITY FOR INJURIES TO SERVANT "INDEPENDENT CONTRACTOR"-EXTENT OF CONTROL.

Where the employment is to do a particular work, the employer reserving no right of control over such work except to require it to conform dependent contractor" for whose negligence the to a particular standard, the employé is an "in

master is not liable.

[5] In his argument in his brief, appel- [Ed. Note.-For other cases, see Master and lant insists that he excepted to the granting Servant, Cent. Dig. § 1258; Dec. Dig. 318(2). of the motion, and that his after-appearance For other definitions, see Words and Phrases, in the second trial did not operate as a waiv- First and Second Series, Independent Contractor.] er of such exception. As before indicated, ap-3. MASTER AND SERVANT 321-INDEPENDpellant has not by his brief presented the question of his exception to the ruling on such motion. However, as the record comes to us, such ruling, if properly presented, furnishes no ground for reversible error. This is so because it is not claimed that the action is one in which, under the statute, supra, appellee was not entitled to such new trial, but the objection goes merely to the question of irregularity in granting such new trial, when there has been no judgment rendered on the first verdict.

ENT CONTRACTOR NEGLIGENCE OF MASTER. Where hotel manager employed plaintiff to test rope fire escape, as required by the Danger(Burns' Ann. St. 1914, § 3862d), by sliding down ous Occupation Act (Acts 1911, c. 236) § 4 it, and assured him of its safety, but reserved no authority to prescribe the manner in which were not liable for injuries suffered by reason plaintiff should do the work, held hotel owners of breaking of fire escape under Acts 1909, c. 118 (Burns' Ann. St. 1914, §§ 3841-3847b), requireration of buildings to be properly safeguarded. ing materials and contrivances used in the op[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1262; Dec. Dig.

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

321.]

Appeal from Circuit Court, Jasper County; | said building to be equipped with fire esBurton B. Berry, Judge.

Action by Landy McGee against Jay W. Stockton and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Geo. A. Williams and Philip R. Blue, both of Rensselaer, for appellant. W. H. Parkinson and W. W. Lowry, both of Indianapolis, for appellees.

capes, consisting of a chain and knotted rope in each room above the ground floor used as a lodging room, the chain being about 7 feet long, and one end thereof fastened to the wall of the room at the side of the window in the room, in an effort to comply with the statute providing for fire escapes in hotels and lodging houses; that on the day of November, 1912, Jay W. Stockton, acting as such agent and representative of the owners, came to appellant, and informed him that the state authorities required that the owners of the hotel in question have some one slide or come down the fire escapes in said building, and a report thereof be made

MCNUTT, J. This was an action by appellant, McGee, against appellees, to recover damages for injuries sustained by him while testing a fire escape installed by appellees in a hotel owned by them in the city of Rensselaer, Ind. The complaint was in two para-in writing to said state authorities, and that graphs, and appellees demurred separately to he desired to employ appellant to slide or each paragraph. The court sustained appel- come down said fire escapes and sign and lees' demurrers to the first paragraph, to make such report; that appellant accepted which ruling appellant duly excepted, and said employment and accompanied Stockton overruled their demurrers to the second para- to the building for the purpose of sliding or graph, to which ruling appellees excepted. coming down said fire escapes; that Stockton Separate answers were filed by appellees to took him to a room on the third floor supthe second paragraph of complaint, and de- plied with a fire escape, consisting of a chain murrers thereto overruled. Appellant refus-about 7 feet in length, one end of which was ing to plead further, judgment was rendered for appellees.

Appellant assigns that the court erred: (1) In sustaining appellees' separate demurrers to the first paragraph of complaint; (2) in overruling appellant's demurrers to appellees' answers to the second paragraph of complaint. Appellees separately assign as cross-error the overruling of their demurrers to the second paragraph of complaint.

fastened to the wall of the room at the side of the window, and the other to a knotted rope of sufficient length to reach the ground when thrown outside through the window, and directed appellant to descend from the window in said room to the ground or sidewalk on the outside of the hotel building by means of said chain and rope; that running along outside of the building and immediately under the window was a cement sidewalk, and the lower part of the window was 30 feet above said sidewalk; that when directed by Stockton to descend from the window by

[1] Appellant has not set out in his brief the memorandum filed with his demurrers to the answers, if any was ever filed with said demurrers. No question is therefore present-means of the rope and chain, appellant ined by this assignment of error (Clevenger v. Clevenger, 108 N. E. 868; Quality Clothes Shop v. Keeney, 57 Ind. App. 500, 106 N. E. 541); and, in view of our conclusion that the court did not err in sustaining the demurrers to the first paragraph of complaint, it will serve no purpose to pass upon appellees' assignment of cross-error (Baldwin v. Moroney, 173 Ind. 574, 91 N. E. 3, 30 L. R. A. [N. S.] 761).

formed him that he was afraid said chain was not sufficiently strong to support him, whereupon Stockton assured him that the chain was sufficiently strong, and would support, without danger of breaking, 400 pounds; that appellant then requested Stockton that the chain and rope be lowered through the window to the ground or sidewalk and two men be sent down to swing upon the rope from the ground or sidewalk, and thus test It is contended by appellant that his first the strength of the chain and rope, whereupparagraph of complaint is founded upon the on Stockton again assured appellant that the theory of a violation of section 4 of the act rope and chain were safe and strong, and of 1911 (Acts 1911, p. 597; section 3862d, would support a weight much greater than Burns 1914), known as the "Dangerous Occu- appellant's; that appellant, in obedience to pations Act." The material allegations of Stockton's direction, and believing and relythis paragraph are, in substance, that in No- ing upon his statements as to the strength vember, 1912, appellees Almira M. Stockton and safety of the chain and rope, started to and Williams were the owners of a three- descend said chain and rope from the winstory brick building in the city of Rensselaer, dow to the sidewalk; that when he had known as the Makeever Hotel, which for climbed out of the window, and while holdsome time, had been used as a public hotel, ing to the chain, and when at a distance of the landlord being one Fate, who occupied it 30 feet from the sidewalk, said chain, withunder a lease from said owners; that appel- out any fault or negligence on appellant's lee Jay W. Stockton was, and for some time part, broke, causing him, without any neglihad been, their agent and representative in gence on his part, to fall a distance of 30 the management, operation, and control of feet to the cement sidewalk, and seriously

sible to use for the protection and safety of life, for preserving the reasonable efficiency of such limb and health, limited only by the necessity structure, ways, work, plant, building, factory, elevator, cars, engines, machinery, appliances, apparatus, or other devices or materials, without regard to additional cost of suitable materials or safety appliances, or safe conditions, or operations, the first concern being safety to life, limb and health."

It is alleged in the first paragraph of complaint that appellees came to appellant and informed him:

It is charged that the injuries suffered by | and precaution which it is practicable and posappellant were caused by the carelessness and negligence of appellees, in that they did not test the rope and chain before directing him to descend, and did not use every device, care, and precaution which was practicable and possible for them to use for his ticable and possible for them to use for his protection and safety, limited only by the necessity for preserving the reasonable efficiency of the apparatus or device; that it was practicable and possible for appellees to have tested said chain and rope as requested by appellant, and otherwise, and to have caused a net or similar device to have been suspended under the window above the sidewalk in such a position as to have caught his body in the event the chain and rope broke, thus preventing any injury to him; that during the time mentioned in the complaint, said Jay W. Stockton was acting as the agent or representative of said other appellees in the management and operation of said hotel building and said fire escapes.

"That the state authorities required that the owners of the hotel in question have some one building, and that report thereof be made in slide down or come down the fire escapes in said writing to the said state authorities, and that he desired to employ the plaintiff herein to slide down or come down said fire escapes and sign and make such report."

It is further alleged in said paragraph that "accepted said employment and accompanied the appellantsaid Jay W. Stockton to said building for the purpose of coming down or descending said fire escapes."

[2] In determining whether section 3862d, supra, was intended to apply in the case now under consideration, it becomes important to ascertain the relation which existed between appellant and appellees, as shown by the material averments of said first paragraph of complaint; that is, whether appellant was a servant of appellees, or a mere contractor, and whether it should be held to apply in view of the relations existing between appellant and appellees.

The statutes which appellees were endeavoring to comply with at the time of appellant's injury was passed in 1909 (Acts 1909, p. 302; sections 3841-3847b, Burns 1914). Section 5 of said act (section 3845, Burns 1914), after providing that any owner of a hotel in this state, not already provided with a suitable device for the protection of human life in the case of fire, shall place, or cause to be placed, in every room of such hotel, except on the ground floor, a rope or other device, or knotted rope and chain, or other better appliance by which occupants of said room can lower themselves with safety from tract to another to do a particular work, reserving to himself no control over such work except the window, and, after making provision as the right to require it to conform to a particular to the size of the rope, and that such device standard when completed, he is not liable for the shall be of sufficient strength to support a negligence of the party to whom the contract is weight of 400 pounds, has this further provi-prescribe what shall be done, but not how it is *When the person employing may to be done, or who is to do it, the person so employed is a contractor, and not a servant. Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 106 N. E. 365.

sion:

"And that every device for escape from fire constructed under the provisions of this section shall be tested by making a descent from the window or door where such device for escape is fastened to the ground by the owner or owners or workmen so constructing them, or by any other man under his or their direction, and a record of such descent and by whom made shall be sent to the chief inspector of the department of inspection."

The section of the law, section 3862d, Burns The section of the law, section 3862d, Burns 1914, supra, relied on by appellant as having been violated by appellees, provides as fol

lows:

* *

"It is hereby made the duty of all owners, agents, or persons whatsoever, engaged in the care, operation, management, any building *

ever kind

ances

*

*

** * *

*

*

*

*

of

*are

"It is well settled that where one lets a con

let. *

99

See, also, New Albany Forge, etc., Co. v. Cooper, 131 Ind. 363, 30 N. E. 294; Indiana Iron, etc., Co. v. Cray, 19 Ind. App. 565, 48 N. E. 803; Vincennes Water-Supply Co. v. White, 124 Ind. 376, 24 N. E. 747; Carlson v. Stocking, 91 Wis. 432, 434, 65 N. W. 58; Emmerson v. Fay, 94 Va. 60, 63, 26 S. E. 386; Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755, 54 Am. Rep. 703. See, also, cases cited in

note to 76 Am. St. Rep. 383, 393, 394, and note to 65 L. R. A. 480.

If the relation of master and servant did or business of whatso- not exist between appellant and appellees, to see and to require that and appellant was a mere contractor in the all metal, wood, rope, chains, * * appliall contrivances are performance of the work which he is engaged carefully selected, inspected and tested so as to to do, he became a master, and what was said detect and exclude defects and dangerous condi- to him by appellees by way of assurance that tions * ** and, generally, it shall be the duty of all owners, managers, operators, contrac- the appliance was safe becomes wholly imtors, subcontractors, and all other persons hav- material. ing charge of, or responsible for, any work, mechanism, machinery, appliance, building, factory, plants, means, employment, or business of whatsoever nature, involving risk or danger to employés, or to the public, to use every device, care

[3] In the case at bar, appellees, as shown by the allegations of the complaint, informed appellant that they had equipped the hotel with fire escapes, and that they were re

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PUBLIC IMPROVEMENTS OF PUBLIC WORKS-GRADES. By direct provision of Burns' Ann. St. 1914, § 8696, a city board of public works may, in improving, change the grade of a street or alley.

quired by said law to have some one slide 13. MUNICIPAL
down or come down the fire escapes, and that
report thereof be made in writing to the au-
thorities, and that they desired to employ ap-
pellant to slide or come down the fire escapes
and make such report. Appellant accepted
this employment. Appellees thereby pre-
scribed what should be done, but there is
nothing in the complaint to show that appel-
lees had any authority to prescribe how it
was to be done. Appellant was left to his
own methods, without any control whatever
by appellees.

We are of the opinion that the complaint shows that appellant, in the performance of the work which he is engaged to do, was not a servant. After the contract was entered into, it was wholly immaterial what was said by the parties, if the contract was not thereby changed in character. Appellant's expressions of fear and suggestions of certain tests and appellees' assurances of safety did not, in any way, change the relations of the parties which then existed. After the contract was entered into, appellant was his own boss, and if he undertook to perform the task which he had contracted to do, without taking precautions to ascertain whether the equipment was safe, then he incurred all the risk incident thereto. And we are of opinion that section 3862d, supra, was not intended to apply to a case like the one under consideration, where the owner of a hotel building expressly contracts with another to do the particular thing which the statute requires such owner to do or have done.

The lower court did not err in sustaining the demurrer to the first paragraph of complaint.

Judgment affirmed.

HOTTEL, P. J., and MORAN and FELT, JJ., concur. CALDWELL, C. J., and IBACH, J., concur in result.

(62 Ind. App. 519)

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 721; Dec. Dig. 269(3).]

4. EVIDENCE

83(2)-PRESUMPTIONS-OFFICIAL ACTS-BOARD OF PUBLIC WORKS. It is presumed that a city board of public works, in improving and changing grade of a street, conformed to statutory provisions and did its duty; it being a public statutory body. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. 83(2).] 5. EMINENT DOMAIN 101(2)- COMPENSA

TION

- CHANGE OF STREET GRADE - STREET RAILWAY-LIABILITY.

damages to abutting owner, if, solely for its A street car company is liable for special own accommodation and without lawful authority, it changes a street grade.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 270; Dec. Dig.

101(2).]

6. EMINENT DOMAIN 101(2) - COMPENSACHANGE OF STREET GRADE - STREET POWER OF BOARD OF PUBLIC

TION
RAILWAY
WORKS.

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A street railroad company is not liable to abutting owners for special damages for change of city street grade, if it merely adjusts its roadbed to conform with a newly established street grade, fixed through the board of public works; since the injury is not occasioned by its act or conduct, but by the city in changing the street grade.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 270; Dec. Dig. 101(2).] 8. MUNICIPAL CORPORATIONS 269(3) PUBLIC IMPROVEMENTS-BOARD OF PUBLIC WORKS-DISCRETION TO CHANGE.

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BUTLER et al. v. CITY OF KOKOMO et al. improvements under their control, while in

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[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 269; Dec. Dig. 101(1).] 2. EMINENT DOMAIN 119(3) COMPENSATION-APPROPRIATION TO NEW USE-STREETS

-ELECTRIC RAILWAYS.

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progress, as apparently, in their judgment, will better the improvement and will not change the general plan of the work.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 721; Dec. Dig. 269(3).]

9. EVIDENCE 83(2)-PRESUMPTIONS-OFFICIAL ACTS-CHANGES IN PUBLIC IMPROVE MENTS BY BOARD.

while work is proceeding are made by the Where changes in public improvements board of public works, it is presumed they acted in good faith.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. 83(2).] 10. PLEADING 8(15)-FACTS AND CONCLU

SIONS OF LAW.

The construction of a street or interurban railroad, upon a public street or alley, is not a The bare allegation, that a change in a new and additional servitude entitling an abut-public improvement while in progress was made ting property owner to compensation for such "wrongfully and unlawfully," is not equivalent to a charge of fraud.

occupancy.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 307; Dec. Dig. 119(3).]

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 282; Dec. Dig. 8(15).]

Appeal from Circuit Court, Howard Coun-, and meet all the requirements of the public. ty; Wm. C. Purdum, Judge.

Action by Maude L. Butler and another against the City of Kokomo and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Blacklidge, Wolf & Barnes and Overson & Manning, all of Kokomo, for appellants. Joseph C. Herron and Bell, Kirkpatrick & Voorhis, all of Kokomo, for appellees.

but without avail; that the change was made lants protested to the changing of the grade, for the purpose of enabling appellee traction company to operate larger cars than it had theretofore was sufficient for the purposes of operated theretofore, although the grade operating the cars of appellant company over and upon the street; appellee traction company agreed to pay the contractors for all additional cost occasioned by the change, and to pay all damages that might in any way be sustained by the owners of property abutting upon the street, for which appellee traction company might be liable in law, and gave bond to the appellee city to do so. No steps were taken by the appellee traction company to condemn the real estate utilized by it in the manner stated, nor to assess the damages appellants' property sustained. By the lowering of the grade in the manner in which it was done, appellants allege that they have been damaged in the sum of $3,000.

On July 14, 1909, a contract for the improvement was entered into and the plans and specifications adopted by the city was made a part thereof; but, before the contractors began work, appellee city of Kokomo and appellee Kokomo, Marion & Western Traction Company, for the purpose of giving the latter an advantage, wrongfully and unlawfully entered into a contract by which appellee city of Kokomo agreed for the sole benefit of appellee traction company to lower the grade MORAN, J. The question for consideraof Sycamore street, on which appellants' tion in this cause is one purely of law, arising upon the sustaining of a demurrer to the property abuts, and for a long distance east and west thereof; that the grade was lowered second amended complaint, hereafter styled the complaint, and which, in substance, al- some 12 inches by reason of the agreement, upon that portion of the street upon which leges that appellee the city of Kokomo is a municipal corporation organized under the appellants' property abuts, and that the aclaws of the state of Indiana, and that the ap-destroyed for all practical purposes. Appelcess to and from appellants' premises was pellee Kokomo, Marion & Western Traction Company is a corporation engaged in the general passenger traffic owning a line of street railway within the city of Kokomo, and especially upon Sycamore street in said city, and in the years of 1909 and 1910 it also operated a line of interurban railway from the city of Kokomo to the city of Marion and continued to operate such line until December 7, 1912, when appellee, Kokomo, Marion & Western Traction Company and the Kokomo Public Utility Company consolidated under the name of the Indiana Railway & Light Company, the latter acquiring all of the property and assets of the former and assuming all liabilities thereon, including the claim of appellants; and, for more than 10 years prior to the commencement of the action, appellants were the owners of certain real estate in the city of Kokomo, which abuts upon said street; and upon that part of Sycamore street where appellants' property abuts, and for a long distance east and west thereof, the appellee Kokomo, Marion & Western Traction Company owned and controlled a line of railway in the middle of the street, and operated the same for several years prior to December 7, 1912, and, since the last-mentioned date, the same has been operated by appellee, the Indiana Railway & Light Company, continuously for more than 25 years. Sycamore street has been improved and used by the traveling public, and for such period of time the grade line of the street has been established and appellants have improved their property in conformity therewith. On March 24, 1909, appellee city of Kokomo adopted a resolution calling for the reimprovement of Sycamore street, and, pursuant thereto, such steps were taken and surveys had and plans and specifications adopted and the improvement ordered, that a grade line was established in front of ap-leged to have been sustained by appellants. pellants' premises in conformity with the old grade line, which had theretofore been established for more than 20 years; the improvement ordered and the grade lines established were such as to fully accommodate

Appellants' main reliance for reversal of the judgment is that there is enough in the complaint and by proper averments to disclose that the ingress and egress to appellants' property was greatly impaired from which they suffered damages, for the sole benefit of the appellee traction company, and not for the benefit of the public; that, without the lowering of the grade of the street, it served the purpose well as a public thoroughfare, and that the lowering of the grade in the manner alleged amounts to the taking of property without due compensation within the meaning of the Constitution of the state; and the fact that it was done under an ordinance, and by contract between the city and appellee traction company, cannot relieve appellees from answering to the damages al

On the other hand, the objections urged by appellees to the complaint are numerous, but which in an abbreviated form are that the complaint fails to disclose by proper averment that the lowering of the grade of the

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