Appeal from Circuit Court, Newton County; C. W. Hanley, Judge.

Action by Frank Bricker against Warren Springer. From a judgment for plaintiff, defendant appeals. Case transferred from Appellate Court, under Burns' Ann. St. 1901, § 1337u. Affirmed.

Foltz & Spitler, for appellant. Jesse E. Wilson, for appellee.

JORDAN, J. Appellant is a resident of the city of Chicago, Cook county, Ill., and appellee is a resident of Jasper county, state of Indiana. On February 4, 1903, the latter instituted this action by a complaint of two paragraphs, filed in the Jasper circuit court. Subsequently the cause was venued to the Newton circuit court, wherein it was tried by jury. Appellant is the owner and operator of a large ranch or farm situated in Jasper county, Ind., and on and prior to the 20th day of November, 1902, appellee was in appellant's employ, serving him in the performance of general work on said farm. On the aforesaid date, while appellee was engaged at work for appellant about a corn shredder which was then and there operated by the latter on his said farm, the paddle and fans of said shredder were broken into pieces, and by reason of the said accident all the fingers of appellee's right hand were mutilated and severed therefrom, and his said hand was thereby rendered useless. The accident in question which caused said injuries is imputed or attributed to the negligence of appellant in maintaining and operating said corn shredder. On the trial the jury found in favor of appellee and returned a verdict awarding him damages for the injuries sustained. Along with the general verdict answers to a series of interrogatories were also returned. Appellant moved for a new trial for reasons therein assigned, this motion was denied, and judgment was pronounced on the general verdict of the jury. By the errors assigned appellant seeks to have reviewed the several rulings of the court, to wit: First. Denying a petition to remove the cause from the state to the federal court. Second. Overruling the demurrer to each paragraph of the complaint. Third. Overruling his motion for a new trial.

Counsel for appellee has moved to dismiss this appeal for reasons enumerated in the motion, wherein, among other grounds, is assigned the noncompliance by appellant with the rules of this court in the preparation of his brief. Several infirmities in the record are also stated and urged for dismissal. We conclude, however, that there is not sufficient merit in the motion to dismiss to justify the sustaining thereof. The motion is therefore overruled.

Appellant's first contention is that the court erred in denying his petition to remove the cause to the federal court on ac

count of the diversity of citizenship of the parties. The petition to remove alleges that appellee, plaintiff below; demands judgment for $5,000. Where an action like the one at bar, instituted in a state court, is between citizens of different states, and the amount in controversy is in excess of $2,000, exclusive of interest and cost, the removal thereof to the proper federal court upon a petition and bond being filed is authorized and enforced by a federal statute. It is true in this case that each of appellee's paragraphs of complaint alleges that by reason of the loss of his right hand he is damaged in the sum of $5,000, but in each of the paragraphs, however, he demands judgment for damages in a sum less than $2,000. In fact there is nothing in the record as certified up, aside from the petition to remove, to show that the demand for damages under the complaint, either at the time of the filing thereof, or subsequent thereto, was for an amount in excess of $2,000. The trial court, in passing upon the petition to remove to the United States court, was not required to look only to the averments thereof to ascertain the amount actually in controversy, but was also required to look to the complaint in order to determine the amount. As a general rule, in the absence of any provision of law to control, the amount in controversy is deemed and held to be the amount demanded by the plaintiff in his complaint. Especially is this true in actions for unliquidated damages. Desty on Federal Procedure, 96; Moon on Removal of Causes, § 84; Lake Erie, etc., Ry. Co. v. Juday, 19 Ind. App. 436, 49 N. E. 843; Western, etc., Tel. Co. v. Levi, 47 Ind. 552; 18 Ency. of Pl. & Pr. p. 269. Although appellee may have been damaged in the sum of $5,000, as stated in the complaint, nevertheless that was not the amount for which he demanded a recovery He appears to have been satisfied to expressly limit the amount which he thought he ought to recover and for which he demanded judgment to a sum under $2,000. The identical question as here presented was decided adversely, and properly so, to appellant's contention in Lake Erie, etc., Railway Co. v. Juday, supra. As the amount in controversy, as shown by the demand of the complaint, does not exceed $2,000, the court's denial of appellant's petition to remove was a correct ruling.

Appellant next insists that each paragraph of the complaint is insufficient, and that therefore the court erred in overruling his demurrer. He has, however, neglected to set out in his brief either of the paragraphs in question, or to give a substantial statement of the facts therein alleged, as exacted by clause 5 of rule 22 of this court (55 N. E. vi). Therefore it must be held that he has waived the assignments of error in regard to their insufficiency on demurrer. Perry, etc., Co. v. Wilson, 160 Ind. 435, 67

N. E. 183, and cases there cited; Citizens' National Bank v. Alexander (Ind. App.) 73 N. E. 279. To merely state that a pleading fails to allege this or that fact cannot be regarded as a "concise statement of so much of the record as fully presents the error and the exception relied on, as required by said rule." Buehner, etc., Co. v. Feulner (Ind. Sup.) 73 N. E. 816.

Appellant complains of the ruling of the trial court in giving and refusing to give certain instructions. Some of the charges in controversy are set forth in his brief. Others are not; but in lieu thereof we are merely referred to that part of the record where they may be found. Therefore the error, if any, which is predicated on instructions not set out in appellant's brief as required by rule 22 (55 N. E. vl) must, under decisions of this court, be considered as waived. Huey Co. v. Johnston (Ind. Sup.) 73 N. E. 996, and cases there cited. We have, however, read and considered all of the instructions given, as well as those refused, and, without referring to them in detail, we are of the opinion that the giving or refusing to give the instructions in controversy does not, under the circumstances, constitute reversible error.

The court, at the request of appellant, gave a series of instructions to the jury, some of which may be said to have been more favorable to him than he had a right to demand. The court's charge to the jury, when considered in its entirety, and not by detachments, satisfies us that the jury was properly advised in regard to the law governing the cause. While possibly it may be said that the court in charging the jury unnecessarily dealt with abstract propositions of law, and that some of the charges given standing alone are not strictly accurate, but when the charge as a whole is taken into consideration we fail to discover wherein appellant was by the inaccuracy in question barmed or prejudiced in any of his substantial rights. In construing the instructions as a whole it is apparent we think that the jury must have certainly understood what, in the eye of the law, under the facts, were the rights of the respective parties. The rule is well settled by the decisions of this court that if, upon consideration of all of the instruc tions in the case, it fairly appears that the law was stated to the jurors with substantial accuracy, so that they could not have been misled, no reason under the circumstances is afforded for reversal, although some particular instruction or detached portion thereof cannot be said to be precisely correct. Shields v. State, 149 Ind. 395, 49 N. E. 351, and cases there cited. Some of the instructions in question were apparently refused because they were not an accurate exposition of the law, and others for the reason that they were covered by those given. In regard to instruction No.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, § 229.]

2. TRIAL-SPECIAL FINDINGS-CONFLICT WITH GENERAL VERDICT.

In an action for personal injuries; a general verdict in favor of plaintiff is, in effect, a finding in his favor on the issue of contributory negligence and upon every issuable fact necessary to sustain his cause of action, and is supported, as against special findings, by every presumption and inference of fact which may be drawn from the evidence properly admitted under the issues, and will yield only after resolving all reasonable presumptions against such special findings.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, § 857.]

3. CARRIERS-INJURIES TO PASSENGER-PRESUMPTIONS BY PASSENGER.

A passenger on a street car may presume, in the absence of knowledge to the contrary, that all necessary precautions for his safe transportation have been and will be taken. 4. SAME CONTRIBUTORY NEGLIGENCE.

A passenger who knowingly exposes himself to danger in a way that an ordinarily prudent person would not have done under the cir cumstances, and is thereby injured, or who by reasonable precautions could have forseen the danger and avoided the injury, cannot recover on account of such injury.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 1348.]

5. NEGLIGENCE-CONTRIBUTORY NEGLIGENCEQUESTION FOR JURY.

The question of contributory negligence is for the jury, except where the exact standard of duty is fixed.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 286, 333–346.]

6. CARRIERS-INJURIES TO PASSENGERS-CONTRIBUTORY NEGLIGENCE QUESTION FOR

JURY.

In an action against a street railway for injuries to a passenger riding on the running board of an open car, caused by his coming in contact with iron posts of a bridge over which the car passed, whether plaintiff was guilty of contributory negligence, in that he might have taken a position in the front vestibule of the car, where he would not have been injured, and in that he had ridden over the bridge before and had a general knowledge of its construction, held, under the evidence, a question for the jury. [Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers,

* Rehearing denied. denied.

1379.]

Transfer to Supreme Court

7. SAME-NEGLIGENCE OF CARRIER-SIMILAR

INJURIES.

In an action against a street railway for injuries to a passenger standing on the running board of an open car, caused by his coming in contact with the structural work of a bridge over which the car passed, the fact that no passenger had ever before been injured by coming in contact with the bridge, during the long use thereof by defendant, was to be considered by the jury, but would not of itself relieve defendant from liability for the injury, if it so maintained its road as to endanger the lives and limbs of passengers riding on the running board of its cars by its invitation and with its permission, and with the recognition of the public that such running board was for the carriage of passengers. 8. DAMAGES INTERFERENCE WITH BUSINESS-NECESSITY OF PLEADING.

SPECIAL DAMAGE

Damage consisting of loss of time or interference with the business, trade, or profession of the person injured, is regarded as special, and is recoverable, in an action for the injuries, only when specially averred in the complaint. [Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, §§ 237, 413.]

Appeal from Circuit Court, Randolph County; J. W. Macy, Judge.

Action by Martha Sullivan against the Union Traction Company of Indiana. From a judgment for plaintiff, defendant appeals. Reversed.

G. R. Call, J. A. Van Osdol, and Engle, Caldwell & Perry, for appellant. George H. Koons and B. F. Marsh, for appellee.

MYERS, J. Appellee instituted this suit against appellant to recover damages for personal injury. The action was begun in the Delaware circuit court, and on change of venue sent to the Randolph circuit court, and there tried before a jury, resulting in a verdict for appellee and judgment on the verdict. This cause was tried upon an amended complaint in one paragraph, in which appellant is averred to be the owner and engaged in operating an electric street railway in the city of Muncie, and suburbs thereof, and that one of its lines crosses a bridge over White river, on which line it used what is known as open summer cars; that on August 29, 1901, appellee was a passenger on one of such cars, and, while riding on the running board thereof, collided with a post forming a part of the upper structural work of said bridge and was knocked off and injured. The complaint charges negligence in running said cars in such close proximity to said post as to endanger the life and limbs of passengers so riding; that appellee did not know of the danger of colliding with said post and was not warned by appellant or any one else of the danger therefrom; that the car was filled with passengers, leaving the running board the only place for appellee to ride at the time of boarding the car, and averring "that, by reason of the negligence of the defendant, as aforesaid, plaintiff's body struck the iron post on the southwest end of said bridge with great force and violence, causing him to loose his footing upon said car and

fall off of the same upon the girders, ties, and rods at the side of and on said track and against said car, by means whereby plaintiff was greatly and painfully injured and suffered a long, deep cut and bruises on the left side of his head, a painful cut and bruise on his left shoulder, a fracture of the eighth rib on the left side, and numerous painful bruises upon various parts of his body, and suffered a severe shock to his entire system; that by reason of said injury and the suffering and pain consequent therefrom plaintiff has been damaged," etc. Appellant answered by general denial.

1. Appellant assigns as error in this court the overruling of its motion for judgment on the interrogatories and answers thereto, notwithstanding the general verdict. One hundred and fifty-eight interrogatories were submitted to the jury, which they answered and returned with their general verdict. By this great number of interrogatories substantially the following facts are found: Some time before August 29, 1901, the day appellee received his injury, a bridge across White river had been constructed, and from the time of its construction until the day of the accident it had been maintained by Delaware county, or the city of Muncie, and not by appellant. It was so constructed and maintained that the center portion of the same was used as a wagon way across said river, and on either side of this wagon way at the entrance of the bridge from the city of Muncie were upright iron or steel posts about 30 feet high, forming part of the structural work thereof. On the west side of this wagon way and from the iron or steel posts said bridge was extended, and this extension was used by appellant for its street car tracks in crossing the river with its cars; that on said August 29th, and for 10 or 12 years prior thereto, appellant had been engaged in operating street cars by electricity in and through the streets of the city of Muncie and over this bridge, and on said day at about 9 o'clock in the evening, appellee, being in the city of Muncie, desired to go to the Fair Grounds, the place where he was then engaged in taking care of horses, and with a companion boarded one of appellant's cars, No. 107, at a point in the city of Muncie, for the purpose of being carried as a passenger to his destination, which was across the bridge; that said car No. 107 was one used by appellant and run over its line from the city of Muncie across the bridge and to the Fair Grounds; that said car was one known as an "open summer car," a little over 29 feet in length, having a vestibule in each end, the front vestibule used and occupied by the motorman, and a general passenger apartment divided into eight spaces by posts about two inches thick on either side, extending from the bottom of the car to and supporting the roof, and seats extending across the car between the posts. On each side of the car was a running or footboard extending almost

the entire length of the car and was used for the convenience of passengers in their ingress and egress to and from the car and for the convenience of appellant's employés in charge thereof. This footboard was about 7 inches wide and about 1 foot and 10 inches below the floor of the car, and its outer edge about 9 inches from the edge of the car floor; that when appellee and his companion boarded the car the same was filled with people, some standing up between the seats, and the rear vestibule filled by people standing therein, the motorman being the only person occupying the front vestibule; that it was customary at the time of appellee's injury, when the cars were crowded, for passengers to stand in the front vestibule and between the seats in the main passenger compartment when such seats were filled, and it would have been possible for appellee to have stood between the seats of this car or in the front vestibule. Appellee and his companion boarded the car a little to the rear of the center of the same, and after appellee had looked for a seat, took an erect and upright position directly opposite one of the upright posts and stood on the running board with his back in the direction the car was moving and with his right arm around one of such upright posts; his companion assuming a position standing on the running board, with his left arm around one of the upright posts of the car, the two facing each other, which position they occupied, carrying on a conversation between themselves from the time they boarded the car in the city of Muncie until they reached the bridge and appellee's head near his left ear, his left shoulder and arm came in contact with said iron or steel post and he was knocked down and off of the car and injured; that appellant gave no warning of the car's approach to the bridge nor was any warning given by any other person to the knowledge of appellee. It is also found by the jury that appellee could have leaned in and between said upright posts or stood with his body against and parallel with said car and erect and would have escaped injury; that appellee by reason of said conversation was not unconscious of the general progress, course, and location of said car, nor of the ordinary happenings and occurrences in and about the same, and, had he been facing to the front or watching the general progress, course, and direction and manner in which the car was running, he could have observed the bridge before he was injured, but that there was no evidence as to the distance a person of ordinary eyesight could see the bridge before the car entered it; that the space between the floor of the car and the structural work of the bridge was 134 inches, and at the time of the injury the car on which appellee was a passenger was moving at the rate of about 12 miles per hour, and, had appellee been standing erect upon said running board and neither leaning toward or from the structural

work of the bridge, he would not have come in contact with the iron or steel post; that at that time, and each year for several years prior to the day of this injury, fairs, and occasionally other public entertainments, were held at said Fair Grounds, and frequently passengers on cars operated on this line, including the one on which appellee was riding, were permitted to and did stand on the running boards thereof; that at the time appellee was injured there were five or six persons on the running board of the car on which appellee was standing; that appellee had been a resident of the city of Muncie for about 10 or 12 years prior to the time of receiving the injury, and knew of the bridge and the general manner of its construction, and in order to reach his destination upon that evening he would pass over it, and that he had theretofore crossed the bridge in appellant's cars; that at the time appellee was injured the car was brilliantly lighted with a number of electric lights and was equipped with a lighted headlight on the front end thereof; that both sides of the car were open and unobstructed, except from its upright posts, and that appellee was the first passenger ever injured by coming in contact with the iron structural work of the bridge; that on the evening of the injury a person upon the car observed appellee's position and that he would likely come in contact with the bridge, called to appellee in substantially the following words: "Look out, stranger, the bridge will hit you"-but that appellee did not hear said warning; that appellee was not warned by the motorman or the conductor of the car's approach to the bridge; that appellee at the time of his injury was 33 years old and was earning $12 a week, and on account of his injury was unable to work at his usual occupation for a period of six weeks.

It has been a number of times held by this court, and appellant concedes, that it is not negligence per se for a passenger to ride on the running board of a crowded car propelled by electricity. Marion St. R. Co. v. Shaffer, 9 Ind. App. 486, 36 N. E. 861; Terre Haute Ry. Co. v. Lauer, 21 Ind. App. 466, 52 N. E. 703; Citizens' St. R. Co. v. Hoffbauer, 23 Ind. App. 614, 56 N. E. 64; Frank Bird Transfer Co. v. Morrow (Ind. App.) 72 N. E. 189. But it contends that, because there was room in the front vestibule of the car upon which appellee was riding, and where he might have been carried in safety, and because of the position he took while standing on the footboard of the car, as a matter of law, rendered him guilty of contributory negligence, and he should not recover. In this state contributory negligence is a matter of defense (Southern Indiana Railroad Co. v. Peyton, 157 Ind. 690, 61 N. E. 722; City of Evansville v. Christy, 29 Ind. App. 44, 63 N. E. 867) and, when so interposed to defeat an action for personal injury, it is necessarily one of the questions before the jury and an

swered by their general verdict. This rule obtains in the case at bar, and, the general verdict being in favor of appellee, it is in effect a finding in his favor and against appellant on that issue. It is also a finding against appellant and in favor of appellee upon every issuable fact necessary to sustain appellee's cause of action, when sought to be overthrown by "special facts found by the jury in answer to interrogatories propounded to them." It carries to its support every presumption and inference of fact which might have been drawn from the evidence properly admitted under the issues, and will yield only after resolving all reasonable presumptions against such isolated facts and "one or the other is necessarily erroneous." Albany Land Co. v. Rickel, 162 Ind. 222, 70 N. E. 158; City of South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200; Union Traction Co. v. Barnett, 31 Ind. App. 467, 67 N. E. 205; Chicago, etc., Co. v. Stephenson, 33 Ind. App. 95, 69 N. E. 270.

The law as deduced from the great number of decisions cited in the case of Citizens' St. R. Co. v. Hoffbauer, supra, clearly expresses the degree of care and diligence required of street car companies, regarding the safety and protection of its patrons from danger. It also announces the rule that "a passenger has the right to presume, in the absence of knowledge or warning to the contrary, that all necessary precautions have been, and will be, taken for his safe transportation." From the doctrine declared in that case we have no reason to recede. It is true, if appellee knowingly exposed himself to danger such as an ordinarily prudent person under the circumstances would not have done, and was thereby injured, or if by reasonable precaution he could have foreseen the danger and avoided the injury, he ought not to be allowed damages. City of Evansville v. Christy, supra; Aikin v. Frankford, etc., R. Co., 142 Pa. 47, 21 Atl. 781. But these are questions, under our jurisprudence, generally for the jury; the exceptions being where the exact standard of duty is fixed, or, as said in the case of Citizens' St. R. Co. v. Hoffbauer, supra: "If they find facts which show a failure to attain that standard, the law declares negligence exists. The conduct of the complaining party in such cases is such as to shock the mind of an ordinarily prudent person and shows a plain disregard for common care and caution. In such cases a court may well say that the party's conduct showed a plain and reckless disregard for his own safety. But a court may not declare that negligence does or does not exist in any case simply because the facts be undisputed. But the question is, even though the facts be undisputed, is there room for difference of opinion as to the inferences and conclusions that may be drawn from these undisputed facts? If the inference of negligence, or its absence, necessarily follows from the undisputed facts, it is a

They

question of law; if not, it is for the jury. 'In the ultimate determination of the question,' says Beach on Contr. Neg. (3d Ed.) § 452, 'whether the plaintiff was guilty of negligence, two separate inquiries are involved: First, what was ordinary care under the circumstances? and second, did the conduct of the plaintiff come up to that standard? With respect to the standard of ordinary care it may be remarked that it is not always a fixed standard, and in many cases it must first be found by the jury. In such a case each of these inquiries is for the jury. must assume a standard, and then measure the plaintiff's conduct by that standard.'" The complaint places the iron posts of the bridge within a few inches of the car as it entered the bridge; the distance as found by the jury being 134 inches. The complaint avers an insufficient width between the iron posts of the bridge and the cars operated by appellant on that line to permit the passage of passengers standing on the running boards thereof. The special facts show that appellee might have occupied a position whereby he could have avoided the collision and injury. There were other persons standing on the running board with appellee. We must presume they were all there with the knowledge and consent of appellant's employés in charge of the car. They were not warned of the danger attendant by the proximity of the car to the iron posts of the bridge, and we cannot say as a matter of law, over appellee's positive denial, that because he had a general knowledge of the construction of the bridge, and because he had ridden over the bridge in appellant's cars, that he was thereby possessed of such knowledge of the danger consequent on his riding on the running board of the car as would show "a plain disregard for common care and caution," and impute to him such negligence in case of injury as would relieve appellant from giving him warning of the danger of a collision with the bridge posts. Whatever knowledge might be inferred and attributed to him from these facts was a question for the jury and by them to be considered, together with all the other facts in the case, as affecting the question of contributory negligence. Indiana. etc., Oil Co. v. O'Brien, 160 Ind. 266, 274, 65 N. E. 918, 66 N. E. 742. From the record it appears that appellee was a man of average size; that his position on the car when the collision happened was the same as that by him assumed shortly after taking passage thereon; that he paid his fare to the conductor in charge of the car; that nothing was said to him about standing between the seats or in the front vestibule. There is no evidence that appellee knew that passengers were allowed to stand in the front vestibule with the motorman upon occasions when the car was otherwise crowded with passengers. There is no showing that appellee knew the front vestibule was not fully occupied by