manner that he was unable to loosen it, and was thereby fastened to the track. That while so fast the engine and cars started north on the side track at a slow rate of speed and passed by appellee and within 10 feet of him and continued north past the point where the side tracks connect with the passing track, and then started south on the passing track toward the point where appellee was fastened. That from the time appellee arrived at the switch and up to the time he was injured he was in plain view of the employés operating the engine and cars, and could have been seen by them both before and after his foot became fastened. That from the time his foot became fastened appellee began to scream and cry out loudly, so as to be heard several hundred feet, and in such manner as to attract the attention of persons in the vicinity, and continued to so cry out until he was run over. That such cries could have been heard by such employés as the engine and cars went north on the side track and when approaching him on the passing track, and that during all this time he was moving his body up and down trying to release himself in such manner as should have attracted the attention of such employés. That from the time the engine and cars started north on the side track until he was run over the employés could have stopped the engine and cars at any time within the space of 30 feet, "but that during all of said time the said employés negligently and carelessly failed to keep watch of the track ahead, or to be at their post of duty, but with knowledge of the dangerous condition of said premises, and of the custom of children to pass over the same, continued to run said engine and cars toward this plaintiff while he was so fastened to said track without any effort to stop the same, and thereupon ran said engine and cars upon and over plaintiff, and thereby and by reason of the facts above averred plaintiff was greatly injured." That his legs were crushed, bruised, and mangled in such manner that it was necessary to amputate the right leg below the knee and the left leg twice above the knee.

A defendant is not compelled to go to trial upon a complaint containing general allegations, but it is his right to have the plaintiff state specifically the facts constituting the negligence relied on. But a plaintiff is not required to make a prolix statement of the particulars constituting negligence. The complaint in this case charges that the switch was operated and maintained without being blocked, which created the danger, and that it could have been blocked and the danger removed. It also charges negligence in that the employés failed to keep a lookout on the track ahead, when by so doing they could have seen appellee in time to have avoided the injury. The complaint charges negligence in maintaining the switch in a dangerous condition, and the failure and neglect of appel

lant's employés to keep a lookout on the track on which they were moving the cars, when by so doing they could have seen appellee and his condition in time to have avoided the injury. It is earnestly argued that the case made by the pleading and the proof shows that appellee, when injured, was a mere licensee; and, as the evidence upon this branch of the case is practically undisputed, the sufficiency of the complaint and the sufficiency of the evidence to support the verdict may be considered together. The evidence showed the location of the railroad tracks and switch, and the streets and paths substantially as averred in the complaint. There was evidence that the vicinity of the switch was thickly populated; that prior to 1893 the pathway was located where it afterward remained, and was used by the public generally, and in that year appellant constructed a fence along the west side of its right of way, and at this pathway set posts for a gateway, and that the fence remained in that condition up to the time of the injury; that the gateway was left when the fence was built at the request of a Mr. Leonard, who then lived adjoining the right of way on the west. The pathway led across the right of way to B street, which abutted on the east side of the right of way, and at which point appellant did not maintain any fence. No street or highway crosses the right of way where the path was located. Appellee had frequently used the path, and it was used by a great many people at all times, of which general use appellant's employés knew. The path crossed the track at the place where appellee was injured. None of the streets between Main street and South H street cross the right of way, and persons living on the west side of the right of way in the vicinity of the place where appellee was injured could not reach the east side of the track over a street crossing without crossing private grounds.

The basis of appellee's action is negligence. The pleading and the proof must therefore show, not only that the conduct of appellant was negligent, but also that it was a violation of some duty that appellant owed to appellee. It must appear that appellant owed to appellee the particular care, the omission of which caused the injury. Evansville, etc., R. Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783; City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155, 58 Am. Rep. 65; Lary v. Cleveland, etc., R. Co., 78 Ind. 323, 41 Am. Rep. 572; Thiele v. McManus, 3 Ind. App. 132, 28 N. E. 327; Graves v. Thomas, 95 Ind. 361, 48 Am. Rep. 727. This duty does not exist where the injured party is a trespasser, or intruder, nor if he is a licensee without invitation, express or implied. In such cases he goes upon the premises at his own risk. The only duty the owner of the premises owes to a trespasser, or a "bare licensee," is not to willfully or wantonly injure him, but to use

reasonable care to avoid injuring him after his danger is discovered. Cannon v. Cleveland, etc., R. Co., 157 Ind. 682, 62 N. E. 8; Lingenfelter v. Baltimore, etc., R. Co., 154 Ind. 49, 55 N. E. 1021. While the terms "mere licensee" or "bare licensee" are often used, and no distinction made between such a person and a trespasser, yet we do not understand it to be the rule that under no circumstances will the licensor owe any duty to the licensee other than not to willfully or wantonly injure him, but to use reasonable care to avoid injuring him after his danger is discovered. In the Lingenfelter Case, supra, it was held that appellant was a mere licensee, and that there was no liability; but in the opinion the court said: "It is not necessary for us to affirm, neither do we mean to hold, that under no circumstances will the owner or occupant of the premises be held liable to the licensee for damages sustained by the latter by reason of pitfalls or traps placed upon the premises. We simply affirm the general rule which is applicable and must control under the facts in the case at bar." But if a person comes upon the premises through the invitation, express or implied, of the owner or occupant, such owner or occupant assumes the obligation of exercising reasonable care for his safety. Whether a person so coming upon premises would be called a licensee is immaterial, for the reason that in any case whether there is a right of action in such injured person depends upon whether or not he was at the time rightfully upon the premises. "Where a person has a license," said the court in Indiana, etc., R. Co. v. Barnhorst, 115 Ind. 399, 16 N. E. 121, "to go upon the grounds or the inclosure of another, he takes the premises as he finds them, and accepts whatever perils he incurs in the use of such license. But when the owner or occupant, by enticement, allurement, or inducement, whether express or implied, causes another to come upon his lands, he then assumes the obligation of providing for the safety and protection of the person so coming, and for any breach of duty in that respect such owner or occupant becomes liable for any injury which may result to the person so caused to come onto his lands. The enticement, allurement, or inducement, as the case may be, must be the equivalent of an express or implied invitation. Mere acquiescence in the use of one's lands by another is not sufficient. Such an implied invitation may be inferred from some act or line of conduct, or from some designation or dedication." See, also, Evansville, etc., R. Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783; Lary v. Cleveland, etc., R. Co., 78 Ind. 328, 41 Am. Rep. 572; Jeffersonville, etc., R. Co. v. Goldsmith, 47 Ind. 43; Sweeny v. Old Colony, etc., R. Co., 10 Allen (Mass.) 368, 87 Am. Dec. 644; Elliott

v. Pray, 10 Allen (Mass.) 378, 87 Am. Dec. 653; Toledo, etc., R. Co. v. Grush, 67 Ill. 262, 16 Am. Rep. 618; Pittsburgh, etc., Ry. Co. v. Brigham, 29 Ohio St. 374, 23 Am. Rep. 751; Gillis v. Pennsylvania R. Co., 59 Pa. 129, 98 Am. Dec. 317; Parker v. Portland Pub. Co., 69 Me. 173, 31 Am. Rep. 262; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Bennett v. Louis. ville, etc., R. Co., 102 U. S. 577, 26 L. Ed. 235; Graves v. Thomas, supra; Cannon v. Cleveland, etc., R. Co., supra; Lingenfelter v. Baltimore, etc., R. Co., supra; 3 Elliott on Railroads, §§ 1248, 1249, 1250; Louisville, etc., R. Co. v. Phillips, 112 Ind. 59, 13 N. E 132, 2 Am. St. Rep. 155; Ohio, etc., Ry. Co. v. Walker, 113 Ind. 196, 15 N. E. 234, 3 Am. St. Rep. 638. The case of Louisville, etc., R. Co. v. Phillips, supra, in so far as expressions therein "hold or seem to hold a contrary doctrine," was disapproved in Cannon v. Cleveland, etc., R. Co., supra. In the Cannon Case the "highway for foot passengers" was upon the company's premises and "extended longitudinally along and upon the tracks from one street to another," and "the right to recover," said the court, "is predicated upon appellee's failure to have watchmen and barricades and to blow whistles and ring bells to keep appellant out of danger, without knowing that she was on the premises."

The question here is whether it can be said, from all the circumstances and surroundings, that appellee was at the place where injured by invitation. It is said that "the principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it." But the conclusion does not follow from this statement that such inference arises only where there is a common interest or mutual advantage. An invitation may be inferred or implied from some act or conduct of the owner of the premises, although there may be in the use of the premises no common interest or mutual advantage. Whether in any given case there are acts sufficient to constitute an implied invitation or inducement must depend upon the particular circumstances and surroundings, and cannot be measured by any absolute rule. We have already set out the evidence showing the circumstances, surroundings, and conditions as they existed at the time of the injury, and as they had existed for a long time prior to the injury. The jury might have inferred from all these that when the company constructed the fence on the west side of its right of way, and left a gateway at the path which was then and had been for a long time used by the public generally as a continuation of the street for foot passengers, it permitted it to remain apparently a continuation of the street for such purpose.

It is true the gateway was left at the request of a resident on the west side of the track. But at the time this was done the path was and had been in general use by the public. The street on the east side of the track abutted on the right of way, with no fence between the end of the street and the right of way. Extending west across the right of way was the path, which passed off of the right of way through the gateway constructed by appellant about 11 years before the injury and always kept open for travel. Through the gateway and along this path was the only practical route between residences west of the track and the main part of the town, and before and at the time the gateway was constructed in the fence the path was in almost constant use. Under all the circumstances the jury might conclude that the gate was left that the path might be used thereafter as it had been up to that time. We are not prepared to say that there was no evidence authorizing the jury to conclude that the public generally was using the pathway at the time appellee was injured by inducement or implied invitation. See Holmes v. Drew, 151 Mass. 578, 25 N. E. 22; Barry v. New York, etc., R. Co., 92 N. Y. 289, 44 Am. Rep. 377; Harriman v. Pittsburgh, etc., R. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am St Rep. 507; Nichols' Adm'r v. Washington, etc., R. Co., 83 Va. 99, 5 S. E. 171, 5 Am. St. Rep. 257; Taylor v. Delaware, etc., Co., 113 Pa. 162, 8 Atl. 43, 57 Am. R. 446; Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450; Davis v. Chicago, etc., R. Co., 58 Wis. 646, 17 N. W. 406, 46 Am. Rep. 667; Byrne v. New York, etc., R. Co., 104 N. Y. 362, 10 N. E. 539, 58 Am. Rep. 512; Gaynor v. Old Colony, etc., Ry. Co., 100 Mass. 208, 97 Am. Dec. 96; Sweeny v. Old Colony, etc., Ry. Co., supra; Chicago, etc., R. Co., v. Murowski, 179 Ill. 77, 53 N. E. 572; Bennett v. Louisville, etc., R. Co., supra; Graves v. Thomas, 95 Ind. 361, 48 Am. Rep. 727; Cooley on Torts, § 605; 1 Thompson, Negligence, §§ 968, 969.

Counsel for appellant states in his brief that "there is no evidence to sustain the verdict of the jury in this cause; the same being the result merely of sympathy, bias, and prejudice." It is well settled that the jurisdiction of the Supreme and this court, on appeal, is limited to the correction of errors of law. Where error is assigned upon the denial of a motion for a new trial asked upon the ground that the evidence is not sufficient to sustain the verdict, the question presented is not one of fact, but of law. The question presented is not whether the evidence might justify a different conclusion, but whether there was competent evidence upon which the verdict may rest. "Whether or not," said the court in Ft. Wayne, etc., R. Co. v. Husselman, 65 Ind. 73, "the evidence in any case is clear, or overwhelming, or conclusive, is a question

for the jury trying the cause and the judge presiding at such trial. When a jury have passed upon this question, and returned their verdict, and when the court, under whose eye and within whose hearing the evidence has been introduced and the cause has been tried, has refused to disturb the verdict upon the weight or sufficiency of the evidence, we are clearly of the opinion that it is neither our province, nor our duty, to reverse the judgment of the trial court, merely because it may seem to us, from our reading of the record, that 'the evidence in support of the finding is clearly, or overwhelmingly, or conclusively contradicted.'" See, also, Cleveland, etc., R. Co. v. Stewart, 161 Ind. 242, 68 N. E. 170; Deal v. State, 140 Ind. 354, 39 N. E. 930.

Appellee was permitted to answer, over objection, the following question: "You may tell the jury whether you could have got across that track when you started across before the train got down there, if your foot had not caught? Ans. Yes, sir." While this question, strictly speaking, may not have been a proper question, the action of the court in permitting it to be asked and answered is not reversible error. This is not a crossing case. Appellee was not attempting to cross the track in front of an approaching train and took the chance of getting across before the train came. If appellee was attempting to cross the track at a place where he had a right to cross it, there is no evidence in the case tending to show that he was guilty of any contributory negligence.

The court very fully instructed the jury upon the rights of a licensee, and also upon the rights of a person upon the premises of another through an implied invitation. Whether appellee was upon appellant's track at the time of his injury through an implied invitation, was properly submitted to the jury. The instructions given fully covered all the material questions in the case and correctly stated the law. What we have already said upon the question of inducement or implied invitation is applicable to the principal objections made to certain instructions. Taking the instructions as a whole, they were not prejudicial to appellant's rights.

Upon the question of the amount of the recovery the brief of apellant's counsel states: "The amount of damages asked was $20,000. The jury awarded all that was asked, and I am informed expressed the regret that they were not authorized to give more. Does it not strike this court that the jury that returned the verdict in this case acted from dishonest motives-was biased and prejudiced?" The questions presented to this court on appeal are to be determined from the record alone, and a careful consideration of the whole record discloses nothing authorizing us to answer the above question in the

COMSTOCK, J. The suit was brought by the appellee against the appellant upon a beneficiary certificate issued by the appellant May 29, 1902 for $1,000. The complaint is in one paragraph, and alleges the issuing of a certificate to James A. Williamson, providing that, if the member died during the second year, there should be paid $750 and $100 for a monument; that Williamson died August 24, 1903; that the member, Williamson, and the appellees, performed all the conditions; that the defendant denied all liability on the ground that all rights had been forfeited by Williamson's failure to pay certain assessments and dues payable prior to his death; and that the money was due, with interest. The demurrer to the complaint for want of facts was overruled. Appellants then filed an answer, alleging that the member, Williamson, failed to pay his assessment for July, 1903, and that under his contract and the law he thereby forfeited all rights under the certificate sued upon. To this answer the appellees replied: First, a general denial; second, that the appellant had, by custom of accepting assessments after due and by express contract and agreement, waived payment of the assessments. A demurrer for want of facts sufficient to avoid the answers was overruled

to this second paragraph of reply. The second paragraph of reply was dismissed when both sides had rested. The trial by jury resulted in a verdict for the appellees for $770.50, on which judgment was rendered. The errors assigned are that the court erred in overruling the appellant's demurrer to the complaint, and its motion for a new trial. The sufficiency of the complaint is not discussed, and is therefore waived. The court permitted appellee to dismiss the second paragraph of answer, pleading waiver of the conditions of the certificate. In this there was no error. This left the issue formed on the complaint and the answer denying the payment of certain assessments. The controlling question is, was the assessment for July paid?

J. A. Murray, in behalf of defendant, testified that he was clerk at Live Oak Camp No. 5, W. O. W., located at Memphis, Tenn., during the year 1903; that James A. Williamson was a member of said camp; that the last assessment paid to him (Murray) for Williamson was paid to him by H. J. Schilling, July 3, 1903, $1.25 for assessment No. 153. H. J. Schilling testified that he held the office of escort during the year 1903, of Live Oak Camp, W. O. W. He was then asked the following question: "Q. If you were acquainted with James A. Williamson, state if he was a member of your camp, and what, if anything, you know of any one for him paying an assessment for dues during the month of June, 1903. A. Yes; I knew him, and paid his assessment for the month of June, 1903. Q. State with whose money such assessment or dues was paid in June, 1903; and, if your own, whether said Williamson ever repaid you. A. I paid it with my own money, and he had not paid me at the time of his death. It was admitted by the plaintiff that the assessment for July, 1903, was $1.25 and due, but not admitted that it was unpaid. The plaintiff introduced in evidence a receipt for assessment No. 152 which receipt is in words and figures as follows:

paid to the clerk for Williamson was paid by Schilling on July 3, 1903; that it was assessment 153, and was for the month of June, 1903; that the assessment No. 152 paid in June, was for the month of May, 1903, from which it follows, necessarily, that the assessment for July was not paid. Such fact was established by uncontradicted evidence. Under the laws of the order the clerk was the officer authorized to receive payment of assessments. It will not be presumed that payment was made to any one other than the officer authorized to receive it. One of the reasons for a new trial is that the verdict is contrary to law and not sustained by sufficient evidence; another, that the damages assessed are excessive.

Judgment reversed, with instructions to sustain appellant's motion for a new trial.

(37 Ind. App. 341)

CATTERSON et al. v. HALL et al. (No. 5,559.)

(Appellate Court of Indiana, Division No. 2. Feb. 15, 1906.)

1. TRIAL-SPECIAL FINDINGS-INCONSISTENCY WITH GENERAL VERDICT-ANSWERS TO INTERROGATORIES.

Burns' Ann. St. 1901, § 556, provides that, when the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly. Held, that under such section all the facts specially found which are pertinent to the issues must be construed as a whole and found to be inconsistent with the general verdict in order to control the latter. [Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 857-860.]

2. SAME-CONSTRUCTION.

By a general verdict a jury found that complainant's father purchased the property in question, paid a part of the consideration, and had it conveyed to L. in trust for himself and heirs; that he had not intended to hinder or delay his creditors; that the father's widow procured L. to convey the property to her without consideration, and she then conveyed the same to defendant H. without consideration, who knew that the property had been held in trust by L., who subsequently died, and that complainants were the equitable owners of the land, subject to defendants' rights as occupying claimants. Held. that answers to special interrogatories by which the jury found the value of one of the lots in question unimproved, that defendant H. at the time improvements were made by the widow did not know of the trust, and that the jury did not know from the evidence that complainant's father had no intention of defrauding or hindering creditors in conveying the property in trust, did not conflict with the general verdict, so as to require judgment for defendants.

3. TRUSTS-RESULTING TRUSTS.

Complainants' father conveyed property to L. in trust for himself and heirs, without intent to hinder or delay his creditors. After the father's death his widow procured L. to convey the property to her, and she subsequently conveyed it to defendant H., her husband, with notice of the trust. Held, that H. held the property under a resulting trust in favor of complainants, as provided by Burns' Ann. St. 1901, § 3398.

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Action by Harvey Catterson and others against George W. Hall and others. From a judgment in favor of defendant Hall, plaintiffs appeal. Reversed.

Harding & Hovey, for appellants. Taylor & Woods and Romney L. Wilson, for appellee.

WILEY, J. Action to quiet title, in which appellants were plaintiffs below. Their complaint was in two paragraphs, the first of which was in the ordinary form for actions of this character. The second paragraph set out in full the facts upon which they based their action and claim title. In it they averred that on the 19th of September, 1890, Scott Catterson, their father, purchased certain real estate, to wit, lot 26 in E. T. Fletcher's Second Brookside addition to Indianapolis, and had the same conveyed to one Artemus Leffingwell; that on the 30th of April, 1891, at the request of said Scott Catterson, said Leffingwell, his wife joining him therein, executed and recorded in Marion county, Ind., a subdivision of said real estate into lots; that said Scott Catterson caused said real estate to be conveyed to Artemus Leffingwell in trust for him; that the purchase money therefor was paid by said Catterson, and an oral agreement made between him and said Leffingwell that the latter should hold said real estate in trust for the former; that said agreement was made without any fraudulent intent on the part of either of them to cheat, hinder, or delay the creditors of said Catterson, or of any person, and without any fraudulent intent whatever; that said Catterson died intestate May 29, 1891, being a resident of Marion county, Ind., at the time of his death, and left surviving him Ida J. Catterson, his widow, and the appellants, his children, and sole heirs at law; that after the death of said Catterson, his widow urged said Leffingwell, who was her father, to convey said real estate to her, and became so persistent in her demands that he did, on the 3d day of October, 1892, convey the same to her, without any authority for doing so under said trust; that she paid no consideration for such conveyance; that it was wholly without consideration, except as to such part of such premises as she was entitled to as the widow of her deceased husband; that thereafter, on the 24th of December, 1892, the said Ida J. Catterson intermarried with appellee George W. Hall; and that thereafter, on the 16th day of July, 1896, she being sick and not expected to live, said Hall caused instruments to be drawn up, one purporting to be a conveyance by said Ida J. Hall and himself to one Henry Wiel, by which appellee Hall claims that all said real estate was conveyed to said Wiel, and the other, a deed executed by said Wiel purporting to convey the same real estate to said Hall for an expressed consideration of $5; that in fact no consideration whatever was paid to said Ida J. Catterson for the conveyance of said real estate to Wiel, and