within the principle laid down by Wharton, thus: "The prohibition of a statute cannot be evaded by putting a contract in a shape which, while nominally not inconsistent with the statute, virtually contravenes its provisions. This has been frequently held with regard to stipulations evading usury statutes and with regard to assignments evading bankrupt laws. If a contract con lease of appellant's liability under the act | statute in question, it unquestionably falls upon a certain condition. That it is a conditional release of such liability, dependent upon the happening of the condition, namely, the acceptance of said benefits by appellee, there can be no doubt. If that condition happens, as it did, appellant's liability under the act is released by virtue of the antecedent contract, if it is enforced. If it is enforced, it must be so done in violation | of the statute which makes all such conflicts with the general policy and spirit of a tracts null and void. That certainly more than tends to obstruct both the letter and spirit of the statute. Our cases are to like effect in holding that a contract in violation of a statute is void. State Bank v. Coquil | lard, 6 Ind. 232; Cassaday v. American Ins. Co. 72 Ind. 95. And the same is true if any part of the contract is in violation of the law and the consideration unseverable. Daniels v. Barney, 22 Ind. 207; Case v. Johnson, 91 Ind. 477; Benton v. Hamilton, 110 Ind. 294, 11 N. E. 238; Woodford v. Hamilton, 139 Ind. 481, 39 N. E. 47; Santually the object of a statute, it must be so dage v. Studabaker Bros. Mfg. Co. 142 Ind. 148, 34 L. R. A. 363, 51 Am. St. Rep. 165, 41 N. E. 380; Sullivan v. State, 121 Ind. 342, 23 N. E. 150. statute governing it, it will not be enforced, although there may be no literal conflict." 1 Wharton, Contr. § 362. In State ex rel. Matthews v. Forsythe, 147 Ind. 466, 33 L. R. A. 221, 44 N. E. 593, it was said: "In chapter 4, § 1, of Maxwell on the Interpretation of Statutes, under the title of 'Construction to Prevent Evasion,' it is accordingly said, at pages 133 and 134: 'It is the duty of the judge to make such construction as shall suppress all invasions for the continuance of the mischief. To carry out effec construed as to defeat all attempts to do or avoid, in an indirect or circuitous manner, that which it has prohibited or enjoined. In fraudem legis facit, qui salbis verbis But the contract is only conditionally in legis, sententiam ejus circumvenit; and a conflict with the statute; that is, if the con- statute is understood as extending to al! 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 effecting a thing this topic says: "A condition is a limita- which is prohibited, and the thing prohibittion making a contract arbitrarily depended 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 same learned author says: "The promisor is not to be bound only in the future. He is bound from the time he makes the promise, and the title he passes vests subject to the condition. Any intermediate disposition of the title, made by the promisor before the happening of the condition, is subject to the condition. The promisor, also, who agrees to convey an estate on a future contingency, is liable in damages if he makes his compliance with his promise impossible, or subjects the property to waste." And in § 551 he further says: "The same may be said of all contracts to be performed on the happening of a certain event. The contract binds from the time it is made, and ceases to bind on the nonoccur rence of a certain event, which is therefore, in this sense, a condition subsequent." To the same effect is Clark, Contr. Hornbook Series, p. 663, § 277. If we were even mistaken in construing this contract as a conditional one, so as to bring it within the principles above laid down and within the condemnation of the though they may have done it indirectly. When the thing done is substantially that which was prohibited, it falls within the act simply because, according to the true construction of the statute, it is the thing thereby prohibited. Whenever courts see such attempts at concealment they brush away the cobweb varnish,' and show the transaction in its true light. They see things as ordinary men do, and see through them. Whatever might be the form or color of the transaction, the law looks to the substance of it. In all such cases it is, in truth, rather the particular transaction than the statute which is the subject of construction; and, if it is found to be in substance within the statute, it is not suffered to escape from the operation of the law by means of the disguise under which its real character is masked.'" We are therefore of opinion that the contract set up in the second paragraph of the answer is in contravention of the statute, and hence, by force thereof, the contract so set up is null and void; and, that being so, said answer was 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 coerce them into making such finding, but by a motion for a new trial by the party aggrieved. Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741, and cases there cited; Vinton v. Baldwin, 95 Ind. 433, and cases there cited; Lafayette v. Allen, 81 Ind. 166, and cases cited. It is complained, under the motion for a new trial, that the circuit court erred in excusing on its own motion the juror Overholser, who it is alleged was a competent juror, over appellant's objection. But it is not shown that the jury which was finally impaneled was not a fair and impartial jury. 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 immediately withdrew the evidence, and the court, at the request of appellant's counsel, instructed the jury not to consider such evidence. There was no available error in the ruling. It is further contended that the seventh item in the special verdict is not supported by the evidence. It reads thus: "We further find that, under the rules of the defendant company governing the operation of defendant's freight trains in cases where it became necessary for brakemen to go between defendant's cars, attached to the engine drawing the same, for the purpose of making couplings, it was the duty of the engineer in charge of the engine of said train, after receiving a signal from a brakeman, to stop the engine and train for the purpose of allowing such brakeman to pass between the cars thereof and make a coupling, to obey a signal and stop the engine and train, and so remain until receiving a signal from some member of the train crew to back or pull forward." Counsel say: "The evidence does not sustain this finding. There was no evidence of such a rule." The finding is not that there was such a rule, but that, "under the rules of the defendant," not rule, "it was the duty of the engineer" to do certain things. Those rules might have been such as were adopted by the company, or such as by long usage and custom had become understood as incumbent on appellant's servants. We think there was evidence sufficient to support this finding. Complaint is made of the third instruction given by the court: "That in estimating the plaintiff's damages it is proper that you should take into consideration the plaintiff's physical and mental suffering." In Wabash & W. R. Co. v. Morgan, 132 Ind., at page 438, 31 N. E., at page 663, an instruction "that in making such estimate the jury should take into consideration appellee's physical and mental suffering if any were caused by and arising out of the injury," was upheld as not an “erroneous statement of the rule governing the assessment of damages contained in either of the instructions." There was no error in giving the instruction. The fourth instruction is complained of. reading, as appellant's counsel say in their brief, thus: "The jury are instructed that if they find that the plaintiff had proved by a preponderance of the evidence the injuries he has sustained as charged in the complaint, then every particular and phase of the injury may enter into the consideration of the jury in estimating his damages, loss of time, with reference to his condition and ability to earn money in his business or calling, his loss from permanent improvement of his physical powers, his pain and suffering already endured, and that may be endured, from his injuries in the future, his personal disfigurement; and the jury should 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- ed "impairment" in appellee's copy. Neither cial verdict fails to find material facts, with-brief cites us to the place in the tran The tenth finding was objected to because the evidence on that branch of the verdict was not sufficient to sustain it, but there was evidence sufficient to support it, though there was strong conflicting evidence. We can only look to that part of the evidence that supports the finding. 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 in copying the instructions that we are authorized to read it "impairment" instead of The judgment is affirmed. Petition for rehearing overruled. MINNESOTA SUPREME COURT. Jacob SCHUS, Respt., v. POWERS-SIMPSON COMPANY, Appt. (85 Minn. 447.) 1. Defendant is a corporation organ- common car 2. In this action (one to recover damages for personal injuries received by a brakeman in coupling cars on defend ant's said railroad) the evidence received on the trial tended to show that there was a general custom in respect to the operation of the road for the engineer, when cars being coupled came together, immediately to stop his engine and hold it stationary until signaled to again move it by the brakeman making the coupling. It further tended to show that, on the occasion complained of, this cus tom was not observed by defendant's engi neer, in consequence of which plaintiff was injured. It is held that the evidence was sufficient to require the submission of the *Headnotes by BROWN, J. NOTE. See preceding case and note thereto. 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 observe it at the time complained of was the proximate cause of plaintiff's injury. 3. Evidence examined and considered, and held to sustain the verdict of the jury to the effect that plaintiff was not guilty of contributory negligence, and did not assume the risks incident to making the coupling in question; also to sustain the verdict that plaintiff's cause of action was not settled and adjusted by an agreement between the parties made and entered into prior to the commencement of the action. A (February 21, 1902.) PPEAL by defendant from an order of the District Court for Hennepin County denying judgment non obstante veredicto, and denying a new trial after verdict in plaintiff's favor, in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed. The facts are stated in the opinion. Messrs. Woods, Kingman, & Wallace, for appellant: In order that plaintiff may recover he is bound to show facts and circumstances from which it can be ascertained with reasonable certainty what particular precaution defendant ought to have taken but did not. Shearm. & Redf. Neg. 5th ed. § 57 p. 74. Ellison v. Truesdale, 49 Minn. 240, 51 N. W. 918; Johnson v. Walsh, 83 Minn. 74. 85 N. W. 910. Plaintiff admits that he did not give the signal, which was the only way the engineer had of knowing when to stop, and which it was his duty to give. Merritt v. Great Northern R. Co. 81 Minn. 496, 84 N. W. 321; Ellison v. Truesdale, 49 Minn. 240, 51 N. W. 918; 1 Shearm. & Redf. Neg. 5th ed. §110, p. 170. He must be held to have understood and v. Busenbark, 44 Kan. 669, 10 L. R. A. 839, 25 Pac. 48; Ellington v. Beaver Dam Lumber Co. 93 Ga. 53, 19 S. E. 21; Railey v. Garbutt, 112 Ga. 288, 37 S. E. 360; McKnight v. Iowa & M. R. Constr. Co. 43 Iowa, 406. Mr. F. D. Larrabee, for respondent: The defendant in this case, as to this plaintiff, is in truth and fact a railroad corporation. appreciated the hazard of making this coupling, and hence, in attempting to make it, assumed all the risks incident thereto. McLaren v. Williston, 48 Minn. 299, 51 N. W. 373; Tennessee, Coal, I. & R. Co. v. Kyle, 93 Ala. 1, 12 L. R. A. 103, 8 So. 764; Georgia P. R. Co. v. Dooly, 12 L. R. A. 342, and note, 86 Ga. 294, 12 S. E. 923; Bailey, Master's Liability for Injuries to Servant, pp. 150, 170; 1 Shearm. & Redf. Neg. 5th ed. § 185, p. 276; Cooley, Torts, pp. 550-553; Wood, Mast. & S. § 214, p. 673; Scharenbroich v. St. Cloud Fiber-Ware Co. 59 Minn. 116, 60 N. W. 1093; Smith v. Tromanhauser, 63 Minn. 98, 65 N. W. 144; Anderson v. C. N. Nelson Lumber Co. 67 Minn. 79, 69 N. W. 630; Swanson v. Great Northern R. Co. 68 Minn. 184, 70 N. W. 978; Quick v. Minnesota Iron Co. 47 Minn. 361, 50 N. W. 244; Greene v. Minneapolis & St. L. R. Co. 31 Minn. 248, 47 Am. Rep. 785, 17 N. W. 378; Woods v. St. Paul & D. R. Co. 39 Minn. 435, 40 N. W. 510; Smith v. Winona & St. P. R. Co. 42 Minn. 87, 43 N. W. 968; Tuttle v. Detroit, G. H. & M. R. Co. 122 U. S. 189, 30 L. ed. 1114, 7 Sup. Ct. Rep. 1166; Southern P. Co. v. Seley, 152 U. S. 145, 38 L. ed. 391, 14 Sup. Ct. Rep. 530. Releases for torts stand on the same level O'Malley v. St. Paul, M. & M. R. Co. 43 as other contracts. Och v. Missouri, K. & T. R. Co. 130 Mo. 27, 36 L. R. A. 455, 31 S. W. 962; Penn sylvania R. Co. v. Shay, 82 Pa. 198; Squires v. Amherst, 145 Mass. 192, 13 N. E. 609; Christianson v. Chicago, St. P. M. & O. R. Co. 67 Minn. 94, 69 N. W. 640. Defendant does not own and operate a ailroad in the sense that the word "railroad" is used in the statute in question. 23 Am. & Eng. Ene. Law, p. 400; Shearm. & Redf. Neg. 5th ed. § 241c, p. 444; Lavallee v. St. Paul, M. & M. R. Co. 40 Minn. 249, 41 N. W. 974; Johnson v. St. Paul & D. R. Co. 43 Minn. 222, 8 L. R. A. 419, 45 N. W. 156; Kreuzer v. Great Northern R. Co. 83 Minn. 385, 86 N. W. 413. It is impossible that the legislature meant to include logging railroads under the term "railroads," because at the time this statute was passed there was not a logging railroad built in this state. Funk v. St. Paul City R. Co. 61 Minn. 435, 29 L. R. A. 208, 52 Am. St. Rep. 608, 63 N. W. 1099; State v. Duluth Street R. Co. 76 Minn. 96, 57 L. R. A. 63, 78 N. W. 1032; Fidelity Loan & T. Co. v. Douglas, 104 Iowa, 536, 73 N. W. 1039; Massachusetts Loan & T. Co. v. Hamilton, 32 C. C. A. 46, 59 U. S. App. 403, 88 Fed. 588. McLaren v. Williston, 48 Minn. 299, 51 N. W. 373; Funk v. St. Paul City R. Co. 61 Minn. 435, 29 L. R. A. 208, 52 Am. St. Rep. 608, 63 N. W. 1099; Mikkelson v. Truesdale, 63 Minn. 137, 65 N. W. 260; Union Trust Co. v. Kendall, 20 Kan. 515; McKnight v. Iowa & M. R. Constr. Co. 43 Iowa, 406; Massachusetts Loan & T. Co. v. Hamilton, 32 C. C. A. 46, 59 U. S. App. 403, 88 Fed. 588. Because the cars were moved after the coupling was made, contrary to custom. it certainly was a question for the jury to say whether or not the engineer was negligent. Kelly v. Southern Minnesota R. Co. 28 Minn. 98, 9 N. W. 588; Kolsti v. Minneapolis & St. L. R. Co. 32 Minn. 133, 19 N. W. 655: Minn. 289, 45 N. W. 440; Larson v. St. Paul, M. & M. R. Co. 43 Minn. 423, 45 N. W. 722; Moran v. Eastern R. Co. 48 Minn. 46, 50 N. W. 930; Bergquist v. Chandler Iron Co. 49 Minn. 511, 52 N. W. 136: Flanders v. Chicago, St. P. M. & O. R. Co. 51 Minn. 193, 53 N. W. 544; Chicago, M. & St. P. R. Co. v. Carpenter, 5 C. C. A. 551, 12 U. S. App. 392, 56 Fed. 451; Nelson v. Southern P. Co. 18 Utah, 244, 55 Pac. 364: Pier v. Chicago, M. & St. P. R. Co. 94 Wi357, 68 N. W. 464; Chicago, M. & St. P. R. Co. v. O'Sullivan, 143 Ill. 48, 32 N. E. 398; Pennsylvania Co. v. McCormack, 131 Ind. 250, 30 N. E. 27; O'Mellia v. Kansas City. St. J. & C. B. R. Co. 115 Mo. 205, 21 S. W. 503; Whitsett v. Chicago, R. I. & P. R. Co. 67 Iowa, 150, 25 N. W. 104. Brown, J., delivered the opinion of the court: This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had a verdict in the court below, and defendant appeals from an order denying its alternative motion for judgment notwithstanding the verdict, or for a new trial. The facts are as follows: Defendant is a corporation organized for the purIn order to ascertain the subject-matter, | pose of buying and selling timber land; 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 car23 Am. & Eng. Enc. Law, p. 336; Beeson rying on of such other business as is con veniently and necessarily 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 railroadly as such, and another rule for other emas 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 establisnes 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 cause 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. 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 railroad 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 When the |