town of Ora; and that appellee started across said field in the direct route to said town of Ora. We think this averment makes the complaint sufficient to withstand a demurrer.

The third and fourth specifications of errors present the same question, the action of the court in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict. It appears from answers to interrogatories that the well or hole into which appellee fell was located at a point about ninety-one feet north of the northwest corner of the tent mentioned in the complaint, and about 150 feet east of the west line of appellant's real estate; that there was a public highway on the north end of said tract, extending due west from the northwest corner thereof, a distance of 1,150 feet, to the town of Ora; that there was a private roadway belonging to appellant extending due south from the northwest corner of said appellant's land, along the west line thereof and beyond a point opposite said tent; that the northwest corner of the tent was about 475 feet south and 150 feet east of the northwest corner of said real estate. The surface of the ground was comparatively level immediately west of the tent to the driveway, as was the ground from the point where said well was located to a point seventyfive feet north thereof. The hole into which appellee fell was ten or twelve feet in depth and in diameter. It was dug on the day of the alleged injury by the servants of appellant, without the knowledge of appellee. The sand and dirt thrown out of said hole were cast upon the ground immediately around it, and extending from its side to twelve or fifteen feet. Appellant walked into the hole from the south side. When he came in contact with the dirt thrown out of said hole he did not stop to ascertain if there was any danger. There was no public or private roadway leading from the tent on appellant's premises to said hole at the time of the accident. Appellee could have passed out of the west door of the tent a distance of 150 feet to said private roadway of appellant, then north 475 feet to said public highway, and then west 1,150 feet to the town of Ora. There were no obstructions in the way of his so passing. At the time he fell into the hole appellee was looking at a light in a window on a hill eight feet higher than the ground around the tent, situate on the northwest corner of said real estate, near the public highway. Appellant had fifty-one men in its employ at that place engaged in the construction of the telegraph line, and two women engaged as cooks. On the night in question, ten men and the two women took lodging outside of the tent. There were sleeping accommodations in the tent said night for forty-eight persons. It is on the foregoing facts, found in answer to interrogatories, that

appellant asked for judgment notwithstanding the general verdict. As has been said by the Supreme and this court, special findings in answer to interrogatories cannot override the general verdict unless they irreconcilably conflict with it. Special findings are not aided by any presumption, but all reasonable presumptions are indulged to sustain the general verdict. As said in City of Fort Wayne v. Patterson, 3 Ind. App. 36, 29 N. E. Rep. 167: "In determining whether there is such a conflict, the evidence actually introduced will not be examined; and if, taking all the special findings together and adding to them any other facts that might have been proved under the issues, an irreconcilable conflict with the general verdict can be avoided, the answer to interrogatories will not be allowed to control." See, also, Cook v. See, also, Cook v. Howe, 77 Ind. 442; Davis v. Reamer, 105 Ind. 318, 4 N. E. Rep. 857; Pennsylvania Co. 2. Smith, 98 Ind. 42; City of Huntington v. Burke (Ind. App.), 52 N. E. Rep. 415; Sponhaur v. Malloy, Id. 245. The general verdict finds negligence on the part of appellant, and freedom from negligence on the part of appellee contributing to his injury. Under the acts of 1897 (Horner's Rev. Stat. 1897, sec. 546), under which act the verdict in this case was returned, a party is not required to prepare interrogatories to elicit all the facts pertinent to the issue. Under the issues, other facts might have been shown consistent with the general verdict, to wit: That appellee did not know of the safe private way on appellant's ground, or that he was directed by appellant's agent to take the route he selected, or was told that route was free from obstructions; that the night was dark; that the hole could not be seen; that he had no knowledge of its existence. With such additional facts found, an irreconcilable conflict between the facts found and the general verdict might have been avoided. Appellant's motion for judgment was properly overruled.

The fifth and last specification of the assignment of errors is the overruling of appellant's motion for a new trial. Two of the grounds stated and discussed in said motion are that the verdict of the jury is not sustained by sufficient evidence; that the verdict is contrary to the evidence. The evidence is in the record. It appears from the evidence that appellee came from Ora to the tent the evening of the accident, coming east from Ora along the public highway, to the northwest corner of appellant's ground; then south along its private way, to a point west of the tent; and then directly across appellant's land, to the tent. He reached the tent at six or seven o'clock, and found his supper ready, and ate it. An agent of appellant, having authority to arrange for the lodging of appellant's employees, then told him to go to Ora and find a bed. In a few VOL. V-9

minutes thereafter he and one Montgomery (who did not testify) started directly north for Ora, and he walked right into the hole, from the south side thereof. He discovered before he got into the hole that there was a bank of dirt on which he was walking, but did not stop when his foot came in contact with it to investigate, but walked right on. If he had gone by the way he came from Ora, he would not have gone near the hole. The private way over appellant's land along which appellee traveled in coming to the tent was fenced. When he started to return to Ora, the evidence does not show that he attempted or intended to return by the same route by which he had come. The evidence shows that he was not directed to take any particular course. Appeliee had no knowledge of the existence of the hole. The tent was pitched in a cornfield, the soil of which was sandy. The sand thrown out of the well was about as soft as that on the surface of the field. It was spread around the well a distance of twelve or fifteen feet. Its greatest height was three feet. It was hard walking in the sand. The well was right between the tent and a light in a house at the northwest corner of appellant's land, near the public highway leading to Ora. The appellee had seen the house as he was going to the tent. The light in the house, towards which he was walking and by which he was guiding his steps, was 309 feet from the well, and about eight feet higher than the surface of the ground at the tent. It could be seen from the The grade was gradual. The way by which appellee came to the tent over the 150 feet of the field was that made by teams hauling in the tent and camp equipage. In our opinion, it was negligence for appellant to leave the well unguarded, which it had dug on its premises within ninety-one feet of a tent within the same inclosure, in which it lodged and fed fifty people, whether appellee, in attempting to go to Ora by the route he took and when he walked into the well, was proceeding with the caution of an ordinarily prudent person under like circumstances. Under the rule laid down in numerous approved decisions, viz., where there is room for difference of opinion as to the inferences which may be fairly drawn from the conceded facts, the question of negligence must be submitted. to the jury. This was properly submitted to the jury, and answered in the general verdict in favor of appellee. Railway Co. v. Grames, 136 Ind. 39, 34 N. E. Rep. 714; Railway Co. v. Moneyhun, 146 Ind. 147, 44 N. E. Rep. 1106; Board v. Bonebrake, 146 Ind. 311, 45 N. E. Rep. 470; Railroad Co. v. Williams (Ind. App.), 51 N. E. Rep. 128; Hopkins v. Boyd, 18 Ind. App. 63, 47 N. E. Rep. 480, 3 Am. Neg. Rep. 644; Cooley, Torts (12th ed.), p. 805; Railroad Co. v. Stout, 17 Wall. 657; Railroad Co. v. Collarn, 73 Ind. 261; Railroad

Co. v. Locke, 112 Ind. 404, 14 N. E. Rep. 391; Railroad Co. v. Crunk, 119 Ind. 542, 21 N. E. Rep. 31 (1).

Appellee was properly in the course of his employment when he received his injury. He had no knowledge of the dangerous place which had been left unguarded by his employer. It was so dark that it was not visible without a light. Ordinary caution required the appellant in some way to put upon their guard its employees, who lodged within a short distance, and were liable to walk into it if not informed of its existence. The same general direction had been followed by others going to Ora, but who fortunately, either through prior knowledge of the existence of the well or good fortune, kept out of it.

It is the duty of the master to keep his premises in a reasonably safe condition for those who are rightfully there. While the hole was dug by employees of appellee's employer, they were not engaged in the same kind of work and were not co-operating with him in the line in which he was engaged. The doctrine of the negligence of a co-employee does not apply. Appellant's learned counsel lay stress upon what they claim the fact to be, that appellant furnished a safe way to Ora, and that appellee was guilty of contributory negli gence when he departed from it; but, as appears from the evidence, there was no way from the tent to the private way, except that made by the teams which had hauled the tent and equipage. In this connection we cite Railroad Co. v. Adams, 105 Ind. 152, 5 N. E. Rep. 187; Railroad Co. v. Wright, 115 Ind. 378, 16 N. E. Rep. 145, and 17 N. E. Rep. 584; Lumber Co. v. Ligas, (Ill. Sup.), 50 N. E. Rep. 225, 172 Ill. 315, 4 Am. Neg. Rep. 257; Coal Co. v. Greenwood (Ind. Sup.), 50 N. E. Rep. 36, 4 Am. Neg. Rep. 146; Lauter v. Duckworth (Ind. App.), 48 N. E. Rep. 864; Railroad Co. v. Amos (Ind. App.), 49 N. E. Rep. 854; Binford v. Johnston, 82 Ind. 426; Busw. Pers. Inj., p. 98; Railroad Co. v. Adair, 12 Ind. App. 584, 39 N. E. Rep. 672, and 40 N. E. Rep. 822; Railroad Co. v. Barnhart, 115 Ind. 399, 16 N. E. Rep. 121; Barman v. Spencer (Ind. Sup.), 49 N. E. Rep. 9; Hawkins v. Johnson, 105 Ind. 29, 4 N. E. Rep. 172; Coal Co. v. Shaw, 16 Ind. App. 9, 44 N. E. Rep. 676.

Appellant's learned counsel complain of the refusal of the court to give instructions numbered 2 and 6, respectively, as requested, and the modification, and giving as modified, of instructions 7, 10, and 11, set out as reasons in the motion for a new trial. Instruction No. 2 is a correct statement of the law, but is not applicable to the facts in the cause. It was drawn upon the theory that appellee was 1. Louisville & Nashville R. R. Co. v. Crunk, 119 Ind. 542, is reported in 3 Am. Neg. Cas. 229.

passing over appellant's land for his convenience and pleasure. The evidence does not warrant the assumption. He was in the employ of appellant, was to be fed and lodged, and was on his way to find lodging by a direct route at the time he received the injury, and was looking for lodging under the direction of appellant. There is some conflict in the evidence upon that point, but it was for the jury to reconcile such conflict. Instruction six was to the effect that if on the night in question appellee was not given any direction as to the way to take to Ora, and that if he did not return to the town of Ora over the route traveled by him when he came to said tent, but chose another way, with which he was not familiar, in which he fell into the well, mentioned in the complaint, he could not recover. This instruction would have taken from the jury the consideration of the question of contributory negligence as a fact — a question which was properly submitted to the jury. Instructions seven, ten, and eleven, requested by appellant, were open to the same objection. Given as modified, they correctly stated the law. A careful examination of the whole record leads to the conclusion that the cause was fairly tried and a correct result reached. Judgment affirmed.

MCFARLAN CARRIAGE COMPANY v. POTTER.

Supreme Court, Indiana, December, 1898.

MASTER AND SERVANT - PROMISE TO REPAIR DEFECT- ASSUMP. TION OF RISK. Where the master agrees to repair or remedy a defect, the promise relieves the servant from the assumption of risk which the law raises against him from his continuance in the service with knowledge of the defect, but only for such length of time in which it might be reasonably expected the repairs would be made.

SAME.

Where the promise is to repair after the job on hand is completed, the agreement is not operative until that time arrives and the servant assumes the risk of injury by continuing at work.

APPEAL from judgment overruling the demurrer to complaint by Circuit Court, which the appellate court, upon appeal, transferred to the Supreme Court.

MILLER & ELAM, MCKEE, LITTLE & FROST, and SMITH, CAMBORN & SMITH, for appellant.

CONNER & MCINTOSH and MORRIS, INNIS & MORGAN, for appellee. MCCABE, J. The appellee recovered judgment against the appellant for a personal injury. The appellant's demurrer to the