case they should find for the plaintiff, and assess his damages at what they believed, from the evidence, he had sustained.

In Railroad Co. v. Sanders, 166 Ill. 270, 46 N. E. Rep. 799, 2 Am. Neg. Rep. 106, which was a case involving the same principle in effect, this court said (page 278, 166 Ill., page 802, 46 N. E. Rep., and page 109, 2 Am. Neg. Rep.): "The law does not require a railroad company to furnish machinery, tracks, and switches for their employees which are of the best character or that are absolutely safe; but the duty imposed is to use reasonable and ordinary care and diligence in providing safe machinery, tracks, and switches for the use of those engaged in its service. Railroad Co. v. Lonergan, 118 Ill. 41, 7 N. E. Rep. 55. But this rule, as the evidence tends to show, was not observed. The evidence seems to show that, as a general rule, railroad companies at stations within switching limits have their tracks filled up to the level of the ties, so that brakemen may walk over the ties in coupling cars without stumbling or falling. If this precaution had been observed, it is apparent appellee's foot, in attempting to couple the cars in question, would not have been caught under the ties, and he would not have stepped into the cattle guard, and received the injury." What was said in the Sanders Case is applicable here. The evidence in this case shows that many of the railroads, the Chicago and Alton, the Chicago and Northwestern, the Chicago, Burlington and Quincy, and several other roads, on the main track, in the switch yards, and at terminals, grade up their tracks even with the top of the ties to make them safe for brakemen coupling and uncoupling cars. The law requires a railroad company to exercise reasonable and ordinary care and diligence in furnishing safe tracks for its employees. If it is necessary for the safety of its employees in the larger towns and terminals, it is equally necessary in the smaller places where switching is necessary to be done. Moreover, the principle announced in appellee's third instruction is recognized in appellant's seventeenth instruction, which reads as follows: "The court instructs the jury that the law does not require railroad companies to ballast their roads, within switch yards or elsewhere, with cinders or other substance to and on a level with the bottom of the rail, unless the same is necessary to make the same reasonably safe. If the jury believe, from the evidence, that the roadbed and track at the point in question was reasonably safe for the employees in the management of defendant's trains, the jury will find the defendant not guilty." This instruction, while it asserts that the law does not require railroad companies to ballast their roads, within switch. yards or elsewhere, with cinders or other substance, to and on a

level with the bottom of the rail, admits it is required if necessary to make the same reasonably safe, which is in harmony with appellee's third instruction. The law required the railroad company to furnish a reasonably safe track inside the switching limits, where switching was required to be done; and the plaintiff, in the absence of knowledge to the contrary, as we said in the Sanders Case, supra, had the right to presume that the railroad company had discharged its duty in this regard. The evidence shows that the plaintiff was not familiar with the road at the place where the injury occurred, having never been over this Eastern Division prior to this trip, and that he did not know anything about the condition of the track before that; that it was in the nighttime, and he was not standing there more than a minute before the cars were pushed by the engine to be coupled. These instructions, both on the part of appellant and appellee, are in substance to the same effect, and agree as to the law, and are in accord with the views of this court as expressed in Railroad Co. v. Sanders, supra, and therefore could not have misled the jury to the prejudice of appellant. Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. Rep. 1021.

Appellant insists the court erred in modifying appellant's twentysixth instruction, by inserting the words "and known to plaintiff.” The instruction is as follows: The court instructs the jury that if they believe, from the evidence, that the plaintiff was an employee of the defendant, and, as such, was conductor of and in charge of the train in question, and if you further believe, from the evidence, the defendant's roadbed and track at the point in question, as constructed, was reasonably safe for its employees engaged in the movement of the defendant's trains and the operation of its road, and that the condition of the road at the place of injury was open and visible and known to plaintiff, then the law is that the plaintiff assumed the ordinary risks incident to such employment, and that the injury incident to the coupling of cars was one of the risks assumed by the plaintiff under that employment, and for which he cannot recover." The modification was proper, under the evidence in the case. Appellee testified this was his first trip over this division; that he knew nothing about the condition of the track where the injury occurred; that it was in the nighttime, and he had no opportunity to see it except the moment he was attempting to couple the cars; and there is nothing in the record contradicting appellee. In Railroad Co. v. Hines, supra, this court said (page 169, 132 Ill., and page 1022, 23 N. E. Rep.): "The burden of furnishing safe machinery, appliances, surroundings, etc., is upon the master; and, while the master is not to be held liable for defects

and dangers of which the servant is fully informed, yet the servant is authorized to rely upon the acts of the master in that respect, and is under no primary obligation to investigate and test the fitness and safety of the machinery, surroundings, etc., in the absence of notice that there is something wrong in that respect. Shear. & R. Neg. (2d ed.), sec. 95; Bish. Noncont. Law, sec. 678; Porter v. Railroad Co., 60 Mo. 100. And, necessarily, much more is the servant entitled to assume that his master has furnished him with suitable and safe materials, machinery, and surroundings, and relieved him of investigation and inquiry in that regard, where, as in the present instance, the performance of his duties requires constancy of attention to other matters. A man whose attention is constantly directed to moving cars, and their coupling and uncoupling, cannot possibly give much attention to the ties, switch bars, etc., over which he may, from time to time, have to pass."

Appellant objects to the modification of its thirtieth and thirtyfirst instructions. They are as follows: 30. "The court instructs the jury that if they believe, from the evidence, that it is customary for well-managed railroad companies to ballast their tracks with gravel, making a crown in the center, sloping off each way towards the rails, leaving an inch or an inch and a half of space under the rails for water to escape, and that such method of ballasting is rea sonably safe for employees, and if the jury believe, from the evidence, that the defendant's road at the point in question was so ballasted, then the jury will find the defendant not guilty." 31. "The court instructs the jury that if they believe, from the evidence, that the defendant's road was ballasted with gravel at the point in question, crowned in the middle, sloping to the tracks, leaving an inch or an inch and a half of space under the rails for the water to escape and that this mode of ballasting is in common use by well-managed railroads in this country, and that such ballasting is reasonably safe for employees, then the defendant is not liable." Under the allegation in the declaration, as before shown, the modification, "and that such method of ballasting is reasonably safe for employees," was proper, and not error. The modification of appellant's sixth, sixteenth, twentieth, twenty-first, twenty-third, and twenty-fourth instructions was proper for the same reason, and it is unnecessary to refer to each one separately. The instructions, taken together as a series, fully presented the law as applicable to the case under the pleadings; and, perceiving no serious error, the judgment of the appellate court will be affirmed.

Judgment affirmed.

INDIANA PIPE-LINE AND REFINING COMPANY v. NEUSBAUM.

Appellate Court, Indiana, January, 1899.

MASTER AND SERVANT- DANGEROUS PREMISES. — Where it appeared that the defendant employed about fifty men and fed and lodged them in a tent in a field on its premises, and that the plaintiff, one of the employees, came to the tent along a public road and then by a private way to the tent for his evening meal, and after it was over was told by defendant's representative to go to a neighboring town to find a bed, and the plaintiff took a direct route across the field, and it being dark, fell into an unprotected well dug in the field by the defendant, of which the plaintiff was unaware, though there was earth from the well spread around it for a distance of twelve feet, the defendant was liable without proof that it had directed the employee to take that route, or that it knew he had taken it.

APPEAL from judgment, Circuit Court, Wells County, in favor of plaintiff.

DAILEY, SIMMONS and DAILEY, for appellant.

MOCK & SONS, for appellee.

COMSTOCK, J.-The issues in this cause on which the trial was had were formed on the second paragraph of complaint and the answer in general denial thereto. The jury returned a general verdict in favor of appellee, assessing his damages at $363, and with the general verdict returned answers to interrogatories. The court rendered judgment in favor of appellee for the amount named in the verdict.

The specifications of the assignment of errors discussed are those numbered 1, 2, 3, 4, and 5. The first and second question the sufficiency of the second paragraph of complaint. The third and fourth challenge the action of the court in overruling appellant's motion for judgment on the answers to interrogatories, notwithstanding the general verdict. The fifth, the action of the court in overruling appellant's motion for a new trial. The second paragraph of complaint avers that the defendant is a corporation engaged in putting up a telegraph line from Domestic, Ind., to a point near Momence, Ill., and for that purpose employed defendant and some fifty other men, and boarded and lodged said employees in a tent; that the tent was pitched at many places along said line, and near many towns; that on said 28th day of October, 1896, the defendant pitched said tent on its own premises, within one-fourth mile of, and east of, the town of Ora, in Stark county, Ind.; that on said day said

employees worked southeast of said place where said tent was pitched, and did not reach said tent until dark; that plaintiff had never been on said premises before said time, and had never been in the said town of Ora; that there was no road, path, or traveled way from said tent to said town of Ora, but said tent was placed in the field of the defendant; that on said day defendant dug a hole in said field fifteen feet wide and fifteen feet deep, between the said tent and said town of Ora, and negligently, carelessly, and wrongfully left the same uncovered, without light, and wholly unguarded, well knowing that said employees would visit said town of Ora on said night, and pass over said field in going to said town, and were liable to fall into said hole and become injured; that said night was very dark, and said hole could not be seen without light; that on said night there was no lodging room in said tent for plaintiff, and defendant prepared lodging for plaintiff on said night at said town of Ora; that on said night, after the plaintiff had taken supper in said tent, he was directed by defendant to go to said town of Ora for lodging, and, while it was very dark, as aforesaid, plaintiff started across said field on the direct route to said town of Ora, and without any negli gence or fault of plaintiff, but owing to the negligence of the defendant in leaving said hole uncovered, without light or guards, the plaintiff fell into said hole on his head and shoulders, thereby wrenching his back, shoulders, and arms, and breaking his fingers, and bruising his face, hands, and body, and permanently injuring his hands and fingers; that plaintiff received said injuries without any fault, carelessness, or negligence on his part, and he had no knowledge whatever of the existence of said hole or its dangerous condition, before he fell into the same; that, by reason of said wrongs and injuries aforesaid, plaintiff has been, and is, damaged in the sum of $5,000. Wherefore, etc.

Appellant's counsel point out as defects in the foregoing paragraph that it does not allege that appellant directed appellee to take the route he took when he started for Ora, or that appellant knew he had gone or intended to go in the direction taken; the only averment connecting appellant with the trip to Ora being in this language: "He was directed by defendant to go to said town of Ora for lodging." Appellant's learned counsel insist that this allegation is not sufficient without the further averment that he was directed by appellant "to go to Ora across said field, and without any fault or negligence of plaintiff, but owing to the negligence of the defendant, and fell into said hole." By reference to this paragraph, it will be seen that it avers that the tent was pitched in the field of appellant; that there was no road, path, or traveled way from said tent to the