State, ex rel., v. Connersville Nat. Gas Co.

likewise requested defendant not to remove said old pipeline or abandon his service therefrom, which request is refused. Wherefore relator prays that a writ of mandate issue to the defendant, peremptorily requiring the defendant to cease taking up and removing said old pipe-line on his said real estate until final hearing of this cause, and that the defendant be alternatively required to replace and reconnect any part of said old pipe-line to relator's farm dwelling, or show reason why the same should not be done." The alternative order contained in the writ followed the prayer of the petition.

It is evident that mandamus is not the proper remedy to compel appellee "to at once cease taking up and removing the old pipe-line on the real estate of relator, or show cause, if any," etc., as commanded by the mandatory clause of the alternative writ. The remedy, if any, to prevent the taking up of said pipe-line was injunction, and not mandamus. 19 Am. and Eng. Ency. Law (2d ed.), 721; High, Extra. Legal Rem. (3d ed.), §6; Merrill, Mandamus, §43. See, however, Loy v. Madison, etc., Gas Co. (1901), 156 Ind. 332.

It is a rule well settled in this State that the including in the mandatory clause of an alternative writ of a command for greater relief than relator is entitled to under the allegations of his petition and writ renders the same insufficient as against a demurrer for want of facts or a motion to quash. State, ex rel., v. Indianapolis Union R. Co. (1903), 160 Ind. 45-47, 60 L. R. A. 831, and authorities cited; Applegate v. State, ex rel. (1902), 158 Ind. 119, 123, 124, and authorities cited; State, ex rel., v. Commer cial Ins. Co. (1902), 158 Ind. 680, 686, 687; Trant v. State, ex rel. (1895), 140 Ind. 414, 421, and cases cited. No question as to the authority of the trial court to grant leave to amend the alternative writ by striking out the part of the mandatory clause mentioned, or otherwise, is involved in this case.

Pittsburgh, etc., R. Co. v. Collins.

Other objections are urged against the alternative writ, but the conclusion we have reached renders their determination unnecessary.

It follows that the court did not err in sustaining appellee's motion to quash the alternative writ of mandamus. Judgment affirmed.

PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS
RAILWAY COMPANY v. COLLINS.

[No. 20,215. Filed July 1, 1904. Rehearing denied December 6, 1904.]
MASTER AND SERVANT.-Personal Injuries.-Complaint.—Allegation of "Due
Care and Diligence."- Employers' Liability Act.-A complaint by a con-
ductor against a railway company for damages for negligence of the
engineer in charge of the locomotive, under the employers' liability act
(subd. 4, 27083 Burns 1901), is not bad for failure to allege that plain-
tiff was "in the exercise of due care and diligence," since by 2359a
Burns 1901 (Acts 1899, p. 58) the burden of pleading and proving con-
tributory negligence is on the defendant. pp. 570, 571.
SAME.-General Averment of Negligence.—Where a complaint charged that
the engineer of defendant's locomotive "negligently ran said engine
and train into, and caused them to collide with, the rear end of one of
appellant's freight-trains," thereby causing the injury complained of,
is sufficient as against a demurrer for want of facts, a general allegation
of negligence being sufficient as against a demurrer. p. 571.
SAME.-Employers' Liability Act.-To Whom Applies.-Subdivision 4, 27083
Burns 1901, creates a liability in favor of the conductor of a freight-
train for damages caused by the negligence of the engineer of such
train. p. 572.

TRIAL.-Motion to Make Specific.-How Made Part of Record.-A motion to
make more specific, made prior to the taking effect of the act of 1903
(Acts 1903, p. 338, 23), is not properly a part of the record unless
brought in by a bill of exceptions or by order of the court. p. 573.
SAME.-Instructions.-Contributory Negligence.-An instruction in an action
for damages for personal injuries as follows: "contributory negligence
is a matter of defense, and such defense may be proved under the gen-
eral denial. This being the law of this State, it was not necessary for
the plaintiff to offer any evidence whatever in chief bearing upon the
question of his negligence; he only being required to introduce evi-
dence upon the proposition after some proof has been introduced by the
defendant, after which it was his right to offer proof upon that propo-

Pittsburgh, etc., R. Co. v. Collins.

sition," is erroneous where not corrected by other instructions in the cause, since it left the inference that contributory negligence must be proved by defendant's evidence alone. pp. 573, 574.

From Cass Circuit Court; John S. Lairy, Judge.

Action by Thomas Collins against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company for damages for personal injuries. From a judgment on a verdict for $11,880, the defendant appeals. Reversed.

G. E. Ross, for appellant.

S. T. McConnell, B. C. Jenkines, A. G. Jenkines and C. H. Stuart, for the appellee.

MONKS, J.-Appellee brought this action to recover damages for personal injuries received while in the service of appellant as a freight conductor, caused, as he alleged, by reason of the negligence of the engineer in charge of the engine drawing a train of which appellee was the conductor; the action being based upon the fourth subdivision of $7083 Burns 1901, being section one of what is known as the employers' liability act (Acts 1893, p. 294). Appellant's demurrer for want of facts to each paragraph of the complaint was overruled. A trial of said cause re-. sulted in a verdict in favor of appellee, and, over a motion for a new trial, judgment was rendered against appellant.

The errors assigned and not waived call in question the action of the court in overruling the demurrer to each of the paragraphs of the complaint, the motion to make the second paragraph of the complaint more specific, and the motion for a new trial.

It is insisted by appellant that as it is not alleged in each paragraph of the complaint that appellee was, at the time of the injury complained of, "in the exercise of due care and diligence," as required by the fourth subdivision. of $7083, supra, said paragraphs were therefore insufficient, and that the court erred in overruling appellant's demurrer thereto; that the act of February 17, 1899 (Aets 1899, p. 58, §359a Burns 1901), did not change or modify

Pittsburgh, etc., R. Co. v. Collins.

the rule on this subject declared in Indianapolis Union R. Co. v. Houlihan (1901), 157 Ind. 494, 498, 499, 54 L. R. A. 787, and cases cited. What this court said in Pittsburgh, etc., R. Co. v. Lightheiser (1904), ante, 247, disposes of this objection to the complaint, for in that case it was held that such allegations were not necessary to the sufficiency of a complaint under the fourth subdivision of $7083, supra, since the taking effect of said act of 1899, supra. It is proper to say, however, that said act of 1899 did not repeal or modify that part of said fourth subdivision which provides, "the employe so injured being in the exercise of due care and diligence." It only changed the rule of pleading and proof then in force, so that thereafter such fact need not be alleged or proved by the injured employe, but the same constituted a defense, and, when shown to exist in a case by the complaint or the evidence, whether introduced by the plaintiff or the defendant, or by both, no recovery can be had. Said provision of said fourth subdivision is as much a part thereof today as it was before said act of 1899 took effect. Pittsburgh, etc., R. Co. v. Lightheiser, supra. It has been held by the court that the expression, "the employe injured being free from contributory negligence," is the equivalent of said provision of said fourth subdivision of $7083, supra. Indianapolis, etc., R. Co. v. Houlihan, supra; Pittsburgh, etc., R. Co. v. Lightheiser, supra. See, also, Pittsburgh, etc., R. Co. v. Montgomery (1898), 152 Ind. 1, 7, 71 Am. St. 300; Baltimore, etc., R. Co. v. Little (1897), 149 Ind. 167, 168.

It is contended by appellant that no specific act of negligence on the part of appellant, or any person for whose conduct it is answerable under either the common law, or $7083, supra, is alleged in either paragraph of the complaint. It appears from the allegations in each paragraph of complaint that appellee was injured while in the service of appellant as a freight conductor, by the negligence of

Pittsburgh, etc., R. Co. v. Collins.

appellant's locomotive engineer then in appellant's service and in charge of appellant's locomotive engine upon appellant's railway; that said engineer in charge of said locomotive engine "negligently ran said engine and train into, and caused them to collide with, the rear end of one of appellant's freight trains standing on appellant's tracks at a point between Boone and Peoria Junction." This general allegation of negligence of the engineer contained in said paragraphs of complaint was sufficient to withstand a demurrer for want of facts. The thing that the engineer is alleged to have negligently done was that he "negligently ran said locomotive engine and train into, and caused them to collide with, the rear end of appellant's freight-train standing on appellant's track," etc. It has been uniformly held in this State that a general allegation of negligence directly indicating the act or omission complained of, is sufficient to withstand a demurrer for want of facts, and that under such allegation the facts constituting the negligence may be given in evidence. Cleveland, etc., R. Co. v. Berry (1899), 152 Ind. 607, 610, 46 L. R. A. 33; Louisville, etc., R. Co. v. Bates (1897), 146 Ind. 564, 566, and cases cited; Louisville, etc., R. Co. v. Berkey (1893), 136 Ind. 181, 194.

Appellant insists that the statute does not create a liability in favor of a person in charge of a train for the negligence of a person in charge of the locomotive engine drawing such train. Said subdivision creates or gives a right of action in favor of any employe of a railroad company for a personal injury suffered by him while in its service, such employe being in the exercise of due care and diligence that is, free from contributory negligencewhen such injury was caused by the negligence of any person in the service of such railroad company who has charge of any locomotive engine or train upon said railway. If appellee's injury was caused by the negligence of the person in charge of the locomotive engine, as alleged