Counsel, however, do not agree in the construction of the contract. Counsel for the appellant construe it as one entire and singlecontract between the electric light company on one hand and the citizens of Plymouth on the other, upon an entire consideration, but insist that the complaint avers a contract differing in some respects from that made by the papers. Counsel for the appellees style it "an entire quadripartite contract." We do not regard the discussion of this question as cal. culated to throw any light on the real controversy. While it is true that the undertaking of the subscribers to the cash fund was in one sense distinct from that of the parties to the stock subscription, or the donors of the land, and while their undertakings were not only collectively different, but that of each individual subscriber was several, and his own several personal obligation, yet all were acting together in a common enterprise for the accomplishment of a common purpose. The cash subscriptions, stock subscriptions, and land donations together constituted the consideration for the promise of the appellant to remove its manufacture from Fort Wayne to Plymouth. On the other hand, the sole and only consideration moving from the appellant to the other party, as expressed in the contract, was its promise in its proposition of March 24th that it would “move all the manufacture of the Jenney arc lamps and dynamos from Fort Wayne to Plymouth. The particular in which the appellant insists that the complaint avers a contract differing from that made by the papers is in relation to the invoice. Appellant treats this as an attempt to inject a parol modification into the written contract. We do not view it in that light. We think the guaranty of March 27th, fairly construed, imposes upon the appellant the duty of making an invoice that would show the condition of the company on the 1st day of April, 1888, and, while no time is fixed within which it is to be made, the law would imply a promise to make it within a reasonable time. The averments in the complaint relating to the invoice are therefore, in our opinion, fairly within the terms of the contract, and the allegation of failure to make it is an allegation of a breach of one of the company's material undertakings. It is also argued by the appellant that the averments of the complaint, taken together, do not show performance by the appellees or non-performance by the appellant, but, on the contrary, show only partial performance by both. It is said that there is no showing of the payment or tender of 25 per cent. or any other part of the stock subscription, and that there is no averment that the company never commenced moving machinery to Plymouth. It is true that there are no averments of the payment or tender of any portion of the stock subscriptions. We think, however, that sufficient excuse is shown for not making such payment or tender. Counsel argue that the obligation of the stock subscribers to pay 25 per cent. of their subscriptions became absolute when the company commenced to move machinery from Fort Wayne to Plymouth, and that there is no averment that they had not thus commenced to move machinery; that the averment that they had never "moved all or any part of the manufacture of Jenney arc lamps and dynamos from Fort Wayne to said city of Plymouth, nor did said company ever begin the removal thereof, "is not sufficient. They say the" removal of the manufacture, and the removal of machinery to manufacture with, are two different things. In this we agree with them. They are, however, measuring their obligation entirely by the language of the guaranty of March 27th. The terms of the contract, and the full measure of the obligations assumed by the parties, can only be determined by construing all of the writings together. The paper of March 27th, aside from the guaranty and agreement to make an invoice, was a mere modification of the proposition of March 24th. As will be seen by reference to it, that proposition was that they would, upon certain terms, "move all the manufacture of the Jenney arc lamps," etc., and definite dates were fixed for the payment of the stock sub. scriptions. No definite time was fixed for the payment of the $15,000. The modi. fication made the $15,000 due and payable within 10 days, and the first installment of stock subscription, instead of being payable April 15th, was to be paid as soon as the company should commence moving machinery to Plymouth. What machinery? Would the moving of any machinery meet the condition? It is evident that the machinery intended by the parties was that referred to in the original proposition, the machinery of the manufactory at Fort Wayne. The citizens of Plymouth were endeavoring to secure the transfer to their city of a manufacturing concern which they were assured had assets exceeding its liabilities in the sum of $300,000. The proposition made to and accepted by them was that this established and productive industry, in its entirety, should be moved from Fort Wayne to Plymouth. The condition could only be complied with by a bona fide commencement of the removal of the machinery actually belonging to and used in said business at Fort Wayne. Until a commencement or a beginning of this character was made there was nothing due on the stock subscriptions. We think the complaint states a good cause of action. The question as to the measure of damages is sought to be presented in several different ways, and is, we think, properly and fairly in the record by the ruling of the court on instructions asked by the appellant and refused, and on an instruction given by the court. The instructions asked were long, and we will not copy them. In substance the court was asked to instruct the jury as follows: That the burden was on the plaintiff to show all the facts necessary to fix the damages which the jury were required to ascertain and fix separately as to each plaintiff; that, while their verdict should be for a gross sum, it should be a sum made up of the separate damages suffered by each plaintiff; that, if the and good conscience, he ought to refund in the absence of any allegation of special damages and proof thereof, the plaintiff, in general, is entitled to receive the money back, and lawful interest thereon from the time of payment up to the time of recovery. Therefore, in this case, if the jury believe from the evidence that the consideration upon which the plaintiffs and those they represent in this suit paid their money, and upon which the defendant company received it, has failed, there being no allegation of special damages, the measure of damages would be the several amounts paid, with interest thereon from the time of payment up to this date at the rate of 6 per cent. per annum." In our opinion the instruction given is a correct statement of the law, and is clearly applicable to the case made by the plead ings and by the evidence. We also think the court did not err in refusing the in contract was broken, the plaintiffs had the option of demanding a rescission or of affirming the contract and suing for the breach; that, if the plaintiffs had elected to rescind, they would have been entitled to a return of their money upon placing the other party in statu quo, but that by bringing this suit they had elected to affirm the contract and claim damages for its breach; that the damages they were entitled to recover were compensatory, and might be much more or much less than the amount paid; that from the aver. ments of the complaint it must be taken that the benefits which the plaintiffs expected to gain by the performance of the contract consisted in the growth and prosperity of the city of Plymouth, the increase of its population, the enhancement of the value of property in said city, and the various advantages which would accrue to them from the location and maintenance of an electric light manufact-structions asked. As we have already uring industry in their city; that, if the company had broken the contract, the measure of damages would be the loss which they suffered of gains, profits, or advantages which would have accrued to them if the contract had been kept; that, unless the plaintiffs had proven that they had suffered loss or damage by reason of the breach of the contract, other than the subscription of the $15,000, they could recover no more than nominal damages; that unless there was evidence of loss suffered the verdict for damages should be limited to nominal damages; that, while it is the law that one who has paid his money upon a consideration which has wholly failed may recover back the money paid, the rule does not apply where any part of the consideration has been received by him or parted with by the other party; that the building of the shops on the donated land with part of the donated money was, to the extent of the money invested, part performance by the appellant of the contract; and that the appellees had thereby received a part of the consideration on which they had parted with their money, and were not entitled in this suit to recover back their money. The court refused all of the instructions asked, and,over appellant's objection, gave the following: "(6) It is well-settled law that a party who agrees to perform an act and fails to keep his agreement must pay compensation for all injuries that nat. urally and proximately result from the breach. So far as the plaintiffs in this suit and those they represent are concerned, it does not appear, and is not claimed by the defendant company, that there is any other consideration for the payment of the money subscribed by them to the donation fund than the agreement for the removal of that part of the manufactory of the defendant company for the manufacture of the Jenney arc lamp and dynamo from Fort Wayne to Plymouth; and a ailure to perform that stipulation operates as a failure of consideration for the money so paid. In cases of that kind, where the defendant has received money of the plaintiff upon a consideration which has failed, or where the defendant has money of the plaintiff which, in equity said, as we construe the contract the sole and only consideration for the payment of the money was the promise to remove the manufacture, the particular manufactur ing enterprise named, to Plymouth. It is not only averred, but is found as a fact by the jury, this was never done or commenced. It cannot be said that the erection of the buildings was in any sense or in any degree the rendition of any part of the consideration. Both land and the money which paid for buildings and machinery were given to the appellants as a part of the consideration for what they promised to do. Counsel say that to allow the appellant to invest the money in the buildings and then compel them to refund it is to make them involuntary in purchasers of the property. The money was paid to them to be used in that specific way, it is true; but only upon conditions. Without compliance with the conditions they had no right to either retain or invest it. The investment in buildings was, under the circumstances, wholly unauthorized, and they cannot complain because they are required to refund it. In our opinion, upon the facts as they are found by the jury, there was an entire failure of consideration, and in such case, as the appellant concedes, the measure of recovery is the money paid, with interest. The only remaining question is on the admissibility of certain testimony. The court, over the objection of the appellant, allowed the appellees to prove by certain witnesses what was said by the directors of the appellant at the time of making the written guaranty of March 27th, as to when it would be practicable and convenient for them to make the invoice mentioned in that writing. It was objected that this was an attempt to "contradict, vary, or explain a written contract by evidence of preceding and cotemporaneous conversation and verbal statements, and evidence of intentions and understandings, all of which were merged in the written contract finally executed." We have already construed the contract as imposing upon the appellant the duty of making and furnishing an invoice within a reasonable time. What would be a reasonable time must be determined from the evidence. We think it was competent and proper to show in that connection, as bearing upon that question, what the directors said when they gave the guaranty about the time when it would be practicable and convenient for them to make the invoice. Judgment affirmed, with costs. (131 Ind. 250) PENNSYLVANIA Co. v. MCCORMACK.1 (Supreme Court of Indiana. Feb. 5, 1892.) PERSONAL INJURIES-RAILROAD BRAKEMAN-DE FECTIVE TRACKS-PLEADING. 1. It is actionable negligence for a railroad company to so construct a side track that, when cars are standing thereon, freight trains cannot pass on the main line without endangering the lives of brakemen engaged in the discharge of their duties; and the fact that a car causing death, under such circumstances, was left upon the side track by co-servants, is immaterial. 2. Where a brakeman was killed in this manner while assisting in cutting a train, it was not error to admit evidence in behalf of his representatives that it was customary to cut trains at this station. 3. A railroad brakeman, who has no notice of danger, is not bound to use care and watchfulness to discover defects in the road-way and switches which are not so apparent as to be open to the observation of ordinarily prudent men. 4. In an action for wrongful death a general averment that deceased was without fault is sufficient, under the Indiana Code, (Rev. St. 1881, § 838, cl. 2,) unless the facts specially pleaded clearly show contributory negligence. 5. Where the court begins a long instruction with the words, "If you shall find from the evidence," and then clearly recites the facts which are material to plaintiff's recovery, and which his evidence tends to establish, an appellate court will not assume that the jury failed to apply to each statement therein the prefatory qualifica tion. 6. In Indiana, when there is any conflict of evidence, however slight, the issue must be left to the jury. Appeal from circuit court, Bartholomew county; N. R. KEYES, Judge. Action by Patrick H. McCormack, as administrator of the estate of William Riley, deceased, against the Pennsylvania Company, to recover damages for negligently causing Riley's death. Verdict and judgment for plaintiff. Defendant appeals. Affirmed. S. Stansifer, for appellant. F. T. Hord, M. D. Emig, Geo. W. Cooper, and C. B. Cooper, for appellee. McBride, J. William Riley was a brakeman employed by the Pennsylvania Company. He was killed at Middle Fork station, Jefferson county; and the appellee, as administrator of his estate, brought this suit to recover damages for his death. The material averments of the complaint are as follows, omitting those merely prefatory or technical: At said station there is a switch used by defendant for switching trains, and for storing and depositing freight-cars, when necessary for the company, in the course of its business, to leave cars at such station. He avers that, at the date hereinafter mentioned, there was a box freight-car standing on said switch, previously left by the officers and agents of defendant for the purposes of defendant. Plaintiff avers that on or about the 28th 'Rehearing denied. day of July, 1888, William Riley was a servant in the employment of defendant as brakeman on a freight train run and operated by defendant over said line from Madison via Middle Fork station to Columbus, Ind. In making said trip, it became necessary to leave a car, which was a part of said freight train, at said Middle Fork station, and to deposit said car on said switch. He avers that a ladder is constructed on the side of said freight-cars, to be used by brakemen in ascending and descending from the cars and in coupling and uncoupling cars, and to ride on the same to open and close switches, and to give signals to their fellow-servants in the management of said train; and plaintiff avers that the said Riley, while acting as brakeman as aforesaid, and in the line and performance of his duty, while standing and riding on said ladder, and giving directions, by mo. tioning and signaling with his hands to the brakemau at the rear end of the train, to hold it until the switching could be performed at Middle Fork station, and to enable him to open and close the switches when required, and while so standing, and in the performance of his duty, on the car on main track of said defendant, which was in motion, the person of said Riley, without any fault or negligence on his part, came in collision with the end of said freight-car, standing on said switch at said Middle Fork station, and he was then and there and thereby knocked from said ladder and car on the main track, on which he was standing, to the ground, and then and there and thereby killed. Plaintiff avers that the death of said Riley was caused by the carelessness and negligence of defendant in maintaining its switch at said station too near the main track of said defendant, whereby sufficient space and distance could not be maintained between cars running on the main track and those standing on the switch to enable the servants of defendant to perform their duty with reasonable safety, and the switch of defendant was carelessly and negligently allowed to get and remain out of repair, and the deceased was thereby injured. He avers that at the point where said Riley was killed the siding of said switch was but six feet and eight inches from the main track. The switch was constructed and maintained with the ties on the surface of the ground, with no ballast of sand, gravel, or other material. The switch at said point was on a straight line, and not a curve, and the track of the switch should have been made level, or the siding next to the main track should have been raised so as to cause the cars to lean therefrom; but he avers that on account of the negligence of defendant the rail of the switch next to the main track was suffered and permitted by defendant to be and remain three inches lower than the opposite rail of the switch, thereby caus. ing the said freight-car, standing on said switch, to lean towards the main track. The freight cars on the main track and the car on the switch protruded some dis tance over the line of their several tracks, and reasonably sufficient space did not exist, and could not be maintained, be too near its main track, not allowing sufficient space between for cars to pass each other, so as to enable its employes to perform their duties with reasonable safety; that the space between them was only six feet eight inches; that the rail on the inner side of the side track next to the main track was three inches lower than its outer rail, the effect of which was to cause the cars thereon to lean towards the main track; and that this, with the distance which the cars on each track "pro tween the cars passing on the main track | constructing and maintaining its switch and freight-cars standing on said switch, for the safe performance of duty by deceased at the point where he was killed; the space between said points being, towit, about two feet. He avers that deceased was never informed of the danger of said place or of the condition of said switch, and his back was to the place of danger at the time he was injured, giving signals to his co-employes, and in position to open the switch at said point, as required in the performance of his duty, and he had no knowledge of the danger-truded" beyond the lines of the tracks, did ous and improper condition of said tracks and switches. He avers that the deceased was an inhabitant of Bartholomew coun. ty, and was 27 years of age, and he left a wife, Fannie Riley, and a child one year of age, Charles Maurice Riley, who were dependent on deceased for support. Counsel for the appellant filed a motion to require the appellee to make his complaint more specific, indicating 16 particulars in which it was, according to his views, lacking in certainty and in sufficiency of averment. The motion is long, and, the complaint being set out above, it is unnecessary to extend the limits of this opinion by copying the motion. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a good cause of action was also overruled. We will only say of the motion and of the demurrer that by the motion, and the argument in support of it. the appellant insists that additional and specific averments should be added, showing that the deceased was free from contributory negligence; showing why he was, when killed, acting in the line of his duty; that he show by specific averments all of the facts connected with the transaction, with reasons showing why each act alleged to have been done by the decedent was within the line of his duty, and not negligent, and why each act of omission or of commission charged against the appellant was negligent. All of the precedents in this state sustain, as sufficient, the general averment that the party was without fault, unless facts specially pleaded clearly show that he was guilty of contributory negligence. Among the cases are Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234, and many others there cited. The Code prescribes that the complaint shall contain "a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." Rev. St. 1881, § 338, cl. 2. Good pleading does not require, nor will it justify, adding to the statement of the material facts a statement of reasons or arguments to vindicate the pleader's opinion that the facts stated are sufficient to authorize a recovery. The facts stated, also, should be the material and ultimate facts, and not mere evidentiary facts. The complaint might with more justice be criticised as containing unnecessary or redundant averments. It is averred, in substance, that the death of the decedent was caused by appellant's negligence in not allow sufficient space for the safe performance of duty by the deceased. Coupled with the averments showing these facts are others, apparently irrelevant, and, so far as we can see, having no necessary connection with them. They might have been stricken out on motion, but the court did not err in refusing to require the appellee to make them more specific. The material averments are sufficiently specific and certain. Counsel for the appellant argues that to constitute actionable negligence the in. jury must be the "usual, and therefore to be expected, result of the negligence complained of;" that the appellant was not required to anticipate the contingency of a car being placed on the side track, and the work being done as it was done, that such a result as the killing of the appellee in that way was something they could not be required to guard against, and for which they should not be held responsible. It is conceded that if a permanent obstruction had been placed thus near the track the company would have been liable. It is also urged that the proximate cause of the appellee's death was the placing of the car on the side track at that point, and that, this being the act of a co-employe, the company is not liable. Neither of these objections to the complaint is tenable. While the immediate cause of the decedent's death was the car, the real cause was the manner in which the side track was constructed. We must know that railroad tracks, both the main and side tracks, are constructed to be used in the transport of cars from point to point, and that at times cars must necessarily be allowed to stand on such tracks, and while thus standing may properly be passed by other cars on adjacent tracks. We must also take notice of the fact that certain of the employes, serving railroad companies, are charged with the duties incident to the moving of such cars. The obligation of the master to the servant forbids that he should by negligence subject the servant to risks greater than those which fairly and properly belong to his employment. If a railroad company so negligently con structs its tracks and side tracks that cars occupying the main line of its track cannot pass cars occupying the adjacent side track without endangering the lives of the employes charged with the duty of moving such cars, its negligence is actionable. If one of its said employes is by reason thereof killed or injured while in the discharge of his duty, and is himself without fault, and exercising due care, such company is liable to respond in damages. It is no defense that those whose acts brought such cars into such dangerous proximity were co-employes with the one injured. Properly constructed, the tracks would allow the cars to pass without danger, and the master is responsible for the manner of their construction. It will not do to say that the company was not required to contemplate such a contingency when it constructed the tracks. They were constructed to be used, and to be used in that manner; and it was its duty to contemplate the possibility that sooner or later cars might have to pass each other at each and every point on the two tracks. Other objections are also urged to the complaint, but we think none of them are well taken. In our opinion the court did not err in its rulings, either on the motion or on the demurrer. would be difficult for the common mind to 19 and should have been made more full, indicating several particulars in which it contends it is lacking in this respect. The jury were informed by the court that the intestate must have been "without any fault or negligence on his part." This was more favorable to the appellant than it could ask, as it would preclude a recov On the trial of the case, over the objection of the appellant, the appellee was permitted to prove that it was custom-tory negligence is “vague and indefinite, ary to cut moving trains at the station where the decedent was killed. It is argued that this was error. We might well decline to consider the question, on the ground that the objection, as shown by the record, was insufficient to present the question argued. We think, however, that the court did not err in this ruling. True, a custom would not justify a negli-ery if the decedent had been guilty of any gent act; but, as bearing on the question of negligence, and tending in some degree to show whether or not the decedent was negligent, it was competent to prove that he was or was not doing his work in the usual and customary way, which of course involves the inquiry, what was usual and customary? The action of the court in giving, refusing, and modifying a large number of instructions is challenged by the motion for a new trial; but most of the questions thus suggested are waived by a failure to argue them. The appellant, by its first special instruction, asked the court to direct a verdict in its favor. There being evidence tending to support the appellee on all material questions, the court rightly refused this instruction. If there is any conflicting evidence, however slight, upon the point in issue, it must be left to the jury. Adams v. Kennedy, 90 Ind. 318; Boling v. Howell, 93 Ind. 329; Railroad Co. v. Montgomery, 7 Ind. 474; Haynes v. Thomas, Id. 38; Crookshank v. Kellogg, 8 Blackf. 256; Babcock v. Doe, 8 Ind. 110; Messick v. Railway Co. 128 Ind. 81, 27 N. E. Rep. 419. The fifth instruction given by the court consists of a recital of the material facts asserted by the appellee, and which he was required to establish by evidence to justify a recovery, coupled with prefatory and concluding statements instructing the jury that if they should find said facts from the evidence the appellant was liable for the killing of the decedent. The instruction is long, and we think it unnecessary to lengthen this opinion by bringing it into the record. Several objections are urged to it. It is insisted that it is misleading, and is "fatally defective for lack of essential elements for a recovery." It is urged that it is misleading because it negligence whatever, whether it contributed to his death or not. Elsewhere, however, full and correct instructions were given on the subject of contributory negligence; but as a portion of an instruction like that in question, placing before the jury, in a connected and consecutive form, the material facts which the appellee must establish to justify a recovery, this portion of the instruction was probably sufficient. At all events the appellant could not complain of it. We do not think the court erred in giving this instruction. The only remaining instructions discussed are the 6th, 7th, 8th, and 18th, and are as follows: "(6) When Riley sought employment at the hands of defendant, he was held to an implied representation that he was competent to perform the duties of the position he sought, and competent to apprehend and avoid all danger that might be discovered by the exercise of ordinary care and prudence; and, for the purposes of this case, Riley is to be treated as a brakeman and switchman of ordinary experience and skill. (7) A raiiroad company is required to use ordinary care in constructing and maintaining its road-way, switches, and appliances in such a manner and condition that its servant can do and perform all the labor and duties required of him with reasonable safety, and a servant has a right to presume that the company has in these respects done its duty; and a servant does not assume risks flowing from his employer's negligence in these duties, nor is there imposed upon him any duty of watchfulness and care to discover defects in the road-way and switches when he has no notice of danger, and when not so glaring and apparent as to be open to the observation of ordinarily prudent men, and when not specially directed thereto by |