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lease of appellant's liability under the act statute in question, it unquestionably falls upon a certain condition. That it is a con- within the principle laid down by Wharton, ditional release of such liability, dependent thus: “The prohibition of a statute cannot upon the happening of the condition, name- be evaded by putting a contract in a shape ly, the acceptance of said benefits by appel- which, while nominally not inconsistent lee, there can be no doubt. If that condi- with the statute, virtually contravenes its tion happens, as it did, appellant's liability provisions. This has been frequently held under the act is released by virtue of the with regard to stipulations evading usury antecedent contract, if it is enforced. If it statutes and with regard to assignments is enforced, it must be so done in violation evading bankrupt laws. If a contract conof the statute which makes all such con- flicts with the general policy and spirit of a tracts null and void. That certainly more statute governing it, it will not be enforced, than tends to obstruct both the letter and although there may be no literal conflict.” spirit of the statute. Our cases are to like 1 Wharton, Contr. $ 362. In State ex rel. effect in holding that a contract in violation Matthews v. l'orsythe, 147 Ind. 466, 33 L. of a statute is void. State Bank v. Coquil. R. A. 221, 44 N. E. 593, it was said: “In lard, 6 Ind. 232; Cassaday v. American Ins. chapter 4, § 1, of Maxwell on the InterpretaCo. 72 Ind. 95. And the same is true iftion of Statutes, under the title of 'Conany part of the contract is in violation of struction to Prevent Evasion, it is accordthe law and the consideration unseverable. ingly said, at pages 133 and 134: 'It is the Daniels v. Barney, 22 Ind. 207; Case v. duty of the judge to make such construction Johnson, 91 Ind. 477; Benton v. Hamilton, as shall suppress all invasions for the con110 Ind. 294, 11 N. E. 238; Woodford v. tinuance of the mischief. To carry out effecHamilton, 139 Ind. 481, 39 N. E. 47; San- tually the object of a statute, it must be so dage v. Studabaker Bros. Mfg. Co. 142 Ind. construed as to defeat all attempts to do or 148, 34 L. R. A. 363, 51 Am. St. Rep. 165, avoid, in an indirect or circuitous manner, 41 N. E. 380; Sullivan v. State, 121 Ind. that which it has prohibited or enjoined. 342, 23 N. E. 150.

In fraudem legis facit, qui salbis verbis But the contract is only conditionally in lcgis, sententiam ejus circumvenit; and a conflict with the statute; that is, if the con statute is understood as extending to all dition never happens, it does not and never such circumventions, and rendering them can conflict with the statute. But it is unavailing. Quando aliquid prohibetur, equally true if the condition does happen it prohibetur et omne per quod devenitur ad will directly conflict with the statute. One illud. When the acts of the parties are of the most learned of law writers upon adopted for the purpose of eflecting a thing this topic says:

"A condition is a limita which is prohibited, and the thing prohibittion making a contract arbitrarily depend: ed is in consequence effected, the parties have ent on an event at the time uncertain.” 1 done that which they purposely caused, Wharton, Contr. § 545. And in $ 548 the though they may have done it indirectly. same learned author says: “The promisor When the thing done is substantially that is not to be bound only in the future. He which was prohibited, it falls within the act is bound from the time he makes the prom- simply because, according to the true conise, and the title he passes vests subject to struction of the statute, it is the thing tie condition. Any intermediate disposi- thereby prohibited. Whenever courts see tion of the title, made by the promisor be such attempts at concealment they brush fore the happening of the condition, is sub- away the cobweb varnish,' and show the ject to the condition.

The promis- transaction in its true light. They see or, also, who agrees to convey an estate on things as ordinary men do, and see through a future contingency, is liable in damages them. Whatever might be the form or colif he makes his compliance with his promise or of the transaction, the law looks to the impossible, or subjects the property to substance of it. In all such cases it is, in waste.” And in § 551 he further says: truth, rather the particular transaction "The same may be said of all contracts to than the statute which is the subject of conbe performed on the happening of a certain struction; and, if it is found to be in subevent. The contract binds from the time it stance within the statute, it is not suffered is made, and ceases to bind on the nonoccur- to escape from the operation of the law by rence of a certain event, which is there

means of the disguise under which its real fore, in this sense, a condition subsequent.” character is masked.'” We are therefore of To the same effect is Clark, Contr. Horn opinion that the contract set up in the secbook Series, p. 663, § 277.

ond paragraph of the answer is in contraIf we were even mistaken in construing vention of the statute, and hence, by force this contract as a conditional one, so as to thereof, the contract so set up is null and bring it within the principles above laid void; and, that being so, said answer was down and within the condemnation of the ' bad and the circuit court did not err in

sustaining the demurrer thereto for want of in the issue, which were established by the sufficient facts.

evidence the remedy is not by a motion to It is complained, under the motion for a coerce them into making such finding, but new trial, that the circuit court erred in ex. by a motion for a new trial by the party ag. cusing on its own motion the juror Overhol- grieved. Brazil Block Coal Co. v. Hoodlet, ser, who it is alleged was a competent juror, 129 Ind. 327, 27 N. E. 741, and cases there over appellant's objection. But it is not cited; Vinton v. Baldwin, 95 Ind. 433, and shown that the jury which was finally im- cases there cited; Lafayette v. Allen, 81

. Ind In such a case the matter is very much in Overruling appellant's objection to the the discretion of the trial court, and no er- question and answer of the witness Ballard ror is committed where no injury results is also urged as error. The appellee's counfrom the court's action in excusing the sel had asked the witness the question what juror. De Pew v. Robinson, 95 Ind. 109, danger there was to appellee's life at the It is not even claimed that any injury re. time witness saw him, and he answered: “I sulted therefrom. We therefore conclude considered him in a great deal of danger; a there was no error committed in excusing man continuing in that condition could not the juror.

live many days.” Appellee's counsel immeIt is further contended that the seventh diately withdrew the evidence, and the item in the special verdict is not supported court, at the request of appellant's counby the evidence. It reads thus:' "We fur- sel, instructed the jury not to consider such ther find that, under the rules of the de evidence. There was no available error in fendant company governing the operation of the ruling. defendant's freight trains in cases where it Complaint is made of the third instrucbecame necessary for brakemen to go be- tion given by the court: "That in estimattween defendant's cars, attached to the en- ing the plaintiff's damages it is proper gine drawing the same, for the purpose of

that you should take into considermaking couplings, it was the duty of the ation the plaintiff's physical and mental engineer in charge of the engine of said suffering.” In Wabash &W. R. Co. v. Mortrain, after receiving a signal from a brake- gan, 132 Ind., at page 438, 31 N. E., at page man, to stop the engine and train for the 663, an instruction "that in making such purpose of allowing such brakeman to pass estimate the jury should take into considerbetween the cars thereof and make a coup- ation appellee's physical and mental sufferling, to obey a signal and stop the engine ing if any were caused by and arising out and train, and so remain until receiving a of the injury," was upheld as not an “errosignal from some member of the train crew neous statement of the rule governing the asto back or pull forward.” Counsel say: sessment of damages contained in either of “The evidence does not sustain this finding the instructions." There was no error in There was no evidence of such a rule.” The giving the instruction. finding is not that there was such a rule, The fourth instruction is complained of. but that, "under the rules of the defend reading, as appellant's counsel say in their ant," not rule, “it was the duty of the en-brief, thus: “The jury are instructed that gineer” to do certain things. Those rules if they find that the plaintiff had proved by might have been such as were adopted by a preponderance of the evidence the injuries the company, or such as by long usage and he has sustained as charged in the comcustom had become understood as incumbent plaint, then every particular and phase of on appellant's servants. We think there the injury may enter into the consideration

evidence suflicient to support this of the jury in estimating his damages, loss finding

of time, with reference to his condition and The tenth finding was objected to because ability to earn money in his business or callthe evidence on that branch of the verdict ing, his loss from permanent improvement was not sufficient to sustain it, but there of his physical powers, his pain and sufferwas evidence sufficient to support it, though ing already endured, and that may be enthere was strong conflicting evidence. We dured, from his injuries in the future, his can only look to that part of the evidence personal disfigurement; and the jury should that supports the finding.

give the plaintiff such a sum as will comIt is also complained that the circuit pensate him for the injuries received, taking court erred in refusing to require the jury into consideration all the facts proved in to return to their room and insert in their the case." The appellee's counsel have copspecial verdict certain facts specified. To ied the same instruction into their brief, have sustained the motion would have been except the word printed “improvement” in an invasion by. the court of the province of appellant's copy of the instruction is printthe jury to determine the facts. If a spe. el “impairment” in appellee's copy. Neither cial verdict fails to find material facts, with brief cites us to the place in the tran


script where the instruction can be found, /"improvement.” Landon v. White, 101 Ind. and we have spent some time hunting for 249; Indiana, B. & W. R. Co. v. Dailey, 110 it without success. Under such circum- | Ind. 75, 10 N. E. 631. With that reading stances, we are justified in assuming that the instruction is correct. Wabash & W'. the word "improvement” in appellant's copy R. Co. v. Morgan, 132 Ind. 438, 31 N. E. is a clerical or typographical error, and 663, 32 N. E. 85. We have thus patiently that the real instruction had the word "im- gone over all the rulings of the circuit pairment” in it instead of the word “im- court urged and properly presented here as provement,” as set out in appellant's brief. error, and conclude that the circuit court did Indeed, if the word "improvement” were in not err in overruling the motion for a new the transcript, instead of the word "impair- trial. ment,” it is so manifestly a clerical mistake The judgment is affirmed. in copying the instructions that we are authorized to read it "impairment” instead of Petition for rehearing overruled.



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Jacob SCHUS, Respt.,

case to the jury, and to sustain their verdict to the effect that such custom existed,

and that the engineer's failure to follow and POWERS-SIMPSON COMPANY, Appt. observe it at the time complained of was

the proximate cause of plaintiff's injury. (85 Minn. 447.)

3. Evidence examined and considered,

and held to sustain the verdict of the jury •1. Defendant is a corporation organ

to the effect that plaintiff was not guilty ized for the purpose of manufactur

of contributory negligence, and did not asing and dealing in lumber; buying, im

sume the risks incident to making the coup proving, selling, and dealing in real and per

ling in question; also to sustain the verdict sonal property connected with its lumbering

that plaintiff's cause of action was not setbusiness; and, in addition thereto and in con

tled and adjusted by an agreement between nection therewith, it owns and operates the parties made and entered into prior what is called a "logging railroad,” which to the commencement of the action. is equipped with four locomotives and number of logging and box cars, used in car

(February 21, 1902.) rying logs from the pineries to the saw mills owned and operated by it. It does not fol.

PPEAL by defendant from an order of low the business of a common carrier of passengers and freight, the operation of the

the District Court for Hennepin road being limited exclusively to its own County denying judgment non obstante vereprivate business; but its servants and em dicto, and denying a new trial after verployees engaged in the operation of

its dict in plaintiff's favor, in an action brought trains are exposed to the same dangers and

to recover damages for personal injuries risks as are employees and servants of railroad corporations engaged as

alleged to have been caused by defendant's riers. Held, that Gen. Stat. 1894, § 2701. negligence. Affirmed. known as the "fellow servant act," applies The facts are stated in the opinion. to defendant, and it is liable to an employee Messrs. Woods, Kingman, & Wallace, engaged in the operation of such railroad for

for appellant: injuries caused by the negligence of a

In order that plaintiff may recover he is employee or fellow servant. 2. In this action (one to recover dam

bound to show facts and circumstances from ages for personal injuries received which it can be ascertained with reasonable by a brakeman in coupling cars on defend certainty what particular precaution defendant's said railroad) the evidence received ant ought to have taken but did not. on the trial tended to show that there was a

Shearm. & Redf. Neg. 5th ed. § 57 p. 74, general custom in respect to the operation of

Ellison v. Truesdale, 49 Minn. 240, 51 N. the road for the engineer, when cars being coupled came together, immediately to stop

W. 918; Johnson v. Walsh, 83 Minn. 74. his engine and hold it stationary until sig. 85 N. W. 910. naled to again move it by the brakeman mak- Plaintiff admits that he did not give the ing the coupling. It further tended to show signal, which was the only way the engineer that, on the occasion complained of, this clia

nad of knowing when to stop, and which tom was pot observed by defendant's engi neer, in consequence of which plaintiff was

it was his duty to give. injured. It is held that the evidence was

Merritt v. Great Northern R. Co. 81 Minn. sufficient to require the submission of the 496, 84 N. W. 321; Ellison v. Truesdale, 49

Minn. 240, 51 N. W. 918; 1 Shearm. & Redf. *Ileadnotes by Browx, J.

Neg. 5th ed. $110, p. 170. No1b.—See preceding case and note thereto. He must be held to have understood and


appreciated the hazard of making this v. Busenbark, 44 Kan. 669, 10 L. R. A. 839, coupling, and hence, in attempting to make | 25 Pac. 48; Ellington v. Beaver Dam it, assumed all the risks incident thereto. | Lumber Co. 93 Ga. 53, 19 S. E. 21; Railcy

McLaren v. Williston, 48 Minn. 299, 51v. Garbutt, 112 Ga. 288, 37 S. E. 360; MCN. W. 373; Tennessee, Coal, I. & R. Co. v. Knight v. Iowa & M. R. Constr. Co. 43 Iowa, Kyle, 93 Ala. I, 12 L. R. A. 103, 8 So. 764; | 406. Georgia P. R. Co. v. Dooly, 12 L. R. A. 312, Mr. F. D. Larrabee, for respondent: and note, 86 Ga. 294, 12 S. E. 923; Bailey, The defendant in this case, as to this plainMaster's Liability for Injuries to Servant, tiff, is in truth and fact a railroad corporapp. 150, 170; 1 Shearm. & Redf. Neg. 5th ed. tion. $ 185, p. 276; Cooley, Torts, pp. 550–553 ; McLaren v. Williston, 45 Minn, 299, 51 Wood, Mast. & S. $ 214, p. 673; Scharen- X. W. 373; Funk v. St. Paul City R. Co. broich v. St. Cloud Fiber-Ware Co. 59 Minn. 61 Minn. 135, 29 L. R. A. 208, 52 Am. St. 116, 60 N. W. 1093; Smith v. Tromanhauser, Rep. 608, 63 N. W. 1099; Mikkelson v. I'rues63 Minn. 98, 65 N. W. 144; Anderson v. C. dale, 63 Minn. 137, 65 N. W. 260; Union V. Nelson Lumber Co. 67 Minn. 79, 69 N. Trust Co. v. Kendall, 20 Kan. 515; McKnight W. 630; Swanson v. Great Northern R. Co. v. Iowa & J. R. Constr. Co. 43 Iowa, 406 ; 68 Minn. 184, 70 N. W. 978; Quick v. Min Massachusetts Loan & T. Co. v. Hamilton, nesota Iron Co. 47 Minn. 361, 50 N. W. 32 C. C. A. 46, 59 U. S. App. 403, 88 Fed. 244; Greene v. Minneapolis & St. L. R. Co. 588. 31 Minn. 248, 47 Am. Rep. 785, 17 N. W. Because the cars were moved after the 378; Woods v. St. Paul & D. R. Co. 39 coupling was made, contrary to custom. Minn. 435, 40 N. W. 510; Smith v. Winona & it certainly was a question for the jury to St. P. R. Co. 42 Minn. 87, 43 N. W. 968; say whether or not the engineer was negliTuttle v. Detroit, G. H. & M. R. Co. 122 U. gent. S. 189, 30 L. ed. 1114, 7 Sup. Ct. Rep. 1166; Kelly V. Southern Minnesota R. Co. 28 Southern P. Co. v. Seley, 152 U. S. 145, 38 Minn. 98, 9 N. W. 588; Kolsti v. Minneapolis L. ed. 39), 14 Sup. Ct. Rep. 530.

& St. L. R. Co. 32 Minn. 133, 19 N. W. 655; Releases for torts stand on the same level O’Valley v. St. Paul, J. & M. R. Co. 43 as other contracts.

Minn. 289, 45 N. W. 440; Larson v. St. Och v. Missouri, K. & T. R. Co. 130 Mo. Paul, M. & M. R. Co. 43 Minn. 423, 45 N. 27, 36 L. R. A. 455, 31 S. W. 962; Penn. W. 722; Moran v. Eastern R. Co. 48 Minn. sylvania R. Co. v. Shay, 82 Pa. 198; Squires 46, 50 N. W. 930; Bergquist v. Chandler V. Amherst, *145 Mass. 192, 13 V. E. 609; | Iron Co. 49 Minn. 511, 52 N. W. 136: Christianson v. Chicago, St. P. M. &0. R. Flanders v. Chicago, St. P. M. & 0. R. Co. Co. 67 Minn. 94, 69 N. W. 640.

51 Minn. 193, 53 N. W. 544; Chicago, M. Defendant does not own and operate a & St. P. R. Co. v. Carpenter, 5 C. C. A. 551, ailroad in the sense that the word “railroad" | 12 U. S. App. 392, 56 Fed. 451; Nelson v. is used in the statute in question.

Southern P. Co. 18 Utah, 244, 55 Pac. 364: 23 Am. & Eng. Enc. Law, p. 400; Shearm. Pier v. Chicago, M. & St. P. R. Co. 94 Wie & Redf. Neg. 5th ed. $ 241c, p. 444; Lavallee 357, 68 N. W. 464; Chicago, M. & St. P. R. V. St. Paul, M. & M. R. Co. 40 Minn. 249, Co. v. O'Sullivan, 143 ml. 48, 32 N. E. 398 ; 41 N. W. 974; Johnson v. St. Paul & D. R. Pennsylvania Co. v. McCormack, 131 Ind. Co. 43 Minn, 222, 8 L. R. A. 419, 45 N. W. 250, 30 N. E. 27; O'lellia v. Kansas City. 156; Kreuzer v. Great Northern R. Co. 83 St. J. E C. B. R. Co. 115 Mo. 205, 21 S. W. Minn. 385, 86 N. W. 413.

503; Whitsett v. Chicago, R. I. & P. R. CO. It is impossible that the legislature meant 67 Iowa, 150, 2.5 V. T. 104. to include logging railroads under the term “railroads," because at the time this stat- Brown, J., delivered the opinion of the ute was passed there was not a logging rail. court: road built in this state.

This action was brought to recover damFunk v. St. Paul City R. Co. 61. Minn. ages for personal injuries alleged to have 435, 29 L. R. A. 208, 52 Am. St. Rep. 608, been caused by the negligence of defendant. 63. V. W. 1099; State v. Duluth Street R. Plaintiff had a verdict in the court below, Co. 76 Minn. 96, 57 L. R. A. 63, 78 N. W. and defendant appeals from an order deny. 1032; Fidelity Loan & T. Co. v. Douglas, ing its alternative motion for judgment 104 Iowa, 536, 7:3 N. W. 1039; Massachu- notwithstanding the verdict, or for a new setts Loan & 7. Co. v. Hamilton, 32 c. trial. The facts are as follows: DefendC. A. 46, 59 U. S. App. 403, 88 Fed. 588. ant is a corporation organized for the pur.

In order to ascertain the subject-matter, pose of buying and selling timberland; scope, and object of an enactment the in- cutting, hauling, and driving logs and timterpreter should ascertain what is the mis- ber; buying, improving, selling, and dealing chief or defect it is intended to remedy. in real and personal property; and the car.

23 Am. & Eng. Enc. Law, p. 336; Beeson rying on of such other business as is con



veniently and nece

ecessarily connected there. | ing exclusively to railroad corporations as a with. In addition to its lumbering business, class,for, if that were its purpose, it and in connection therewith, it owns and would, as intimated by Judge Mitchell in operates what is called a "logging railroad.” Johnson v. St. Paul & D. R. Co. 43 Minn. Its line extends into the pine woods from 222, 8 L. R. A. 419, 45 N. W. 156, be unconHibbing, in St. Louis county, the distance stitutional and void as class legislation,-but of about 29 miles, including spur tracks and as applying to employers whose servants branches. It is equipped with four locomo- and employees are exposed to the peculiar tives and a number of logging and freight hazards and dangers incident to the operacars, which are used in carrying logs from tion of railroads. In that case the court the pineries to the sawmills owned and said: “If a distinction is to be made as to operated by it. It does not follow the busi- the liability of employers to their emness of a common carrier of passengers or ployees, it must be based upon a difference freight, the operation of its road being in the nature of the employment, and not of limited exclusively to its own business. the employers. One rule of liability cannot At the time complained of, plaintiff was in be established for railway companies, merethe employ of defendant upon this railroad ly as such, and another rule for other em

a brakeman, and was injured while ployers, under like circumstances and concoupling cars. The facts with respect to ditions." Within the reasoning of that dehis injury, the manner in which it was re- cision, and other cases in this court (Smith ceived, and the evidence tending to show v. St. Paul & D. R. Co. 44 Minn. 17, 46 negligence on the part of the defendant will N. W. 149; Lavallee v. St. Paul, M. & M. R. be stated further on in this opinion. Four Co. 40 Minn. 249, 41 N. W. 974; Mikkelson principal questions are presented for our v. Truesdale, 63 Minn. 137, 65 N. W. 260), consideration: (1) Whether defendant is a the test in interpreting and construing this railroad corporation within the meaning, statute is not whether the corporation enor comes within the operation, of chapter 13, gaged in operating the railroad was organLaws 1887 (Gen. Stat. 1894, $ 2701), known ized as a railroad corporation, but whether as the "fellow servant act;” (2) whether the road being operated is a railroad, within the evidence establishes negligence on the the ordinary meaning of the term, in and part of defendant, which was the prox- about the operation of which employees are imate

of plaintiff's injury; (3) exposed to those dangers and risks against whether plaintiff was guilty of contribu- the consequences of which the legislature tory negligence; and (4) whether his cause intended to provide. In Sutherland, Stat. of action for damages was settled and ad- Constr. 218, it is said to be indispensable to justed, and defendant released and dis- a correct understanding of a statute to incharged therefrom, by an agreement made quire what is the subject of it,—what oband entered into between the parties prior to ject is intended to be accomplished by it. the commencement of the action.

When the subject-matter is once clearly as1. It is contended that defendant is not certained, and its general intent, a key is a railroad corporation, within the intent found to all its intricacies. General words and meaning of chapter 13, supra, and that may be restrained to it, and those of narin consequence it is not liable to one of its rower import may be expanded to embrace servants for injuries caused by the negli- it, to effectuate that intent. When the gence and carelessness of a fellow servant. intention can be collected from the statute, It is urged that the statute does not apply words may be modified, altered, or supto defendant, for the reason that it was not plied so as to obviate any repugnancy or organized as a rạilroad corporation, and for inconsistency with such intention. The the further reason that it is not engaged as a subject matter of the statute under considcommon carrier of passengers and freight; eration, and its intent and purpose, were to its railroad business being confined exclu- protect employees engaged in a dangerous sively to its own private affairs. The stat- and hazardous employment; and, within the ute provides, generally, that every railroad decisions cited, the character of the emcorporation owning or operating a railroad ployer is not of controlling importance. The in this state shall be liable for all damages statute is to be given, if not a liberal, at sustained by an agent or servant thereof least a reasonable, interpretation, and one by reason of the negligence of another that will carry into effect the intent of the agent or servant; but railroads under con- legislature.

If the character of the emstruction and not open to public use are ex- ployer, within the meaning of the statute, cepted from the operation of the act. The is not important, and the nature of the emstatute has been before the court repeated-ployment is the test to be applied in conly with respect to its validity and its appli- struing the statute, the expression “any railcation to particular servants and employees, road corporation engaged in the operation of and has been sustained, not as a law apply- ' a railroad” should, within the rule laid

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