reason of his failure to so display a signal-flag he was injured and killed, in that view of the case the decedent was not without fault as charged in the complaint, and the plaintiff cannot recover."

This instruction correctly states the law, and the court did not err in giving it. The reasons which impel us to this conclusion sufficiently appear in what we have said regarding the sufficiency of the complaint, and require no further elab

oration.

Judgment affirmed, with costs.

MASTER AND SERVANT-INCREASED RISK ASSUMPTION BY SERVANT. -The risks assumed by an employee are those reasonably incident to his employment, and no others unless unusual and unreasonable risks are open and visible, and known to the employee: Nadau v. White River Lumber Co., 76 Wis. 120; 20 Am. St. Rep. 29, and note. A servant assumes the risks ordinarily incident to his employment; but he has a right to expect his em ployer to use appliances reasonably safe for his use, and assumes no risks for them unless he has been fully advised as to their defective character: Rummel v. Dilworth, 131 Pa. St. 509; 17 Am. St. Rep. 827, and note. A servant who engages to do hazardous work takes the risks incident thereto, but if the master by a negligent act not involved in the work causes the servant to receive injury, he is responsible therefor, if the servant was not also negli. gent: Woodward v. Shumpp, 120 Pa. St. 458; 6 Am. St. Rep. 716, and note. A servant assumes not only the ordinary risks of his master's service, but also such other risks as are apparent to ordinary observation: Kean v. Detroit Copper etc. Mills, 66 Mich. 277; 11 Am. St. Rep. 492, and note. The fact that a master has requested the servant to perforin a temporary work outside of his ordinary employment is no violation of duty, but if he has ne glected some duty toward such servant he will be liable for injury caused by such neglect: Cole v. Chicago etc. R'y Co., 71 Wis. 114; 5 Am. St. Rep. 201, and note.

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MASTER AND SERVANT-VICE-PRINCIPAL LIABILITY FOR NEGLIGENCE OF. It is a master's duty to exercise reasonable care in providing a safe place for his servants to work, and he cannot escape liability for a failure to do so from the fact that he delegated such duty to another: McElligott v. Randolph, 61 Conn. 157; 29 Am. St. Rep. 181, and note; Carter v. Oliver Oil Co., 34 S. C. 211; 27 Am. St. Rep. 815; Ell v. Northern Pac. R. R. Co., 1 N. D. 336; 26 Am. St. Rep. 621; Ingerman v. Moore, 90 Cal. 410; 25 Am. St. Rep. 138, and note.

NEGLIGENCE-PLEADING WANT OF. A general averment in the complaint that plaintiff was without fault is sufficient: Ohio etc. R'y Co. v. Walker, 113 Ind. 196; 3 Am. St. Rep. 638, and note. A defendant suing for injuries which he claims to have suffered from the negligence of the defend. ant need not make any explicit allegation that he was without fault: Magee v. North Pacific etc. R. R. Co., 78 Cal. 430; 12 Am. St. Rep. 69, and note, with cases on the subject collected.

LOUISVILLE, EVANSVILLE, AND ST. LOUIS CONSOLIDATED RAILROAD COMPANY V. PRITOHARD.

[181 INDIANA, 564.]

NEGLIGENCE.—CONTRIBUTORY NEGLIGENCE on the part of the plaintiff will not be presumed from the fact that she was an infant at the time of receiving injury, and was in charge of a two-horse team.

HIGHWAYS-RAILWAY CROSSINGS. IT IS THE DUTY OF A RAILWAY COBPORATION, upon building its railroad across a highway, to restore it as nearly as possible to its former condition, and failing to do so, it is liable for damages sustained on account of injuries received by reason of the unsafe condition in which the highway was left, provided the injured party used care commensurate with the apparent danger. RAILWAY CORPORATIONS HIGHWAY CROSSINGS. — A GIRL INJURED BY BEING THROWN out of ▲ VEHICLE at a point where a railway crossed a highway, because the highway had been left several inches below the railway track, is entitled to recover for such injury, though she was driving a team at the time, and it was moving from fright, if it was not unmanageable, and the accident would not have occurred had the highway crossing been put and kept in proper condition by the railway corporation.

N. R. Peckinpaugh and J. H. Weathers, for the appellant. R. J. Tracewell, C. L. Jewett, and H. E. Jewett, for the appellee.

OLDS, J. This action is brought by the appellee against the appellant for damages resulting to appellee by reason of an injury sustained on account of the negligence of the appellant in permitting their railroad and track to remain out of repair and out of grade at a highway or street crossing. It is alleged in the complaint that in constructing the railroad it was constructed at a grade fifteen feet higher than the grade of the highway, and the crossing was arranged so that there was a sharp and steep elevation and approach to the track on either side of the railroad, and that on either side of the railroad there was a drop from the top of the track to the top of the grade of the streeet or highway of some fifteen or eighteen inches, so that in crossing the track on said highway there was a sudden rise or jog of fifteen inches to pass over, and a sudden jog or drop of the same distance on going off the railroad track; that by reason of this sudden drop the appellee, Lota Pritchard, was thrown from the two-horse spring wagon in which she was riding at the time she was driving across said track, and very seriously injured.

The first question presented relates to the sufficiency of the complaint. It is contended by the appellant that it is not sufficient, for the reason that it appears from the averments that the appellee was an infant, and that she was driving the two-horse team, and prima facie it is negligence for an infant to drive a two-horse team, and therefore it shows the appellee to have been guilty of contributory negligence, and the demurrer ought to have been sustained to the complaint. Appellant cites no authority in support of this theory, and we do not think it a proper rule to adopt. The complaint does not state the age of the appellee. For aught that appears in the complaint, she may have been over twenty years of age at the time of the injury. It is alleged that she was without fault or negligence.

There are no averments in the complaint to show that she was guilty of contributory negligence. The fact that she was an infant and was driving the horses does not of itself establish contributory negligence. There was no error in overruling the demurrer to the complaint.

It was the duty of the appellant, upon building its railroad across the highway, to restore the highway as nearly as possible to its previous condition, and failing to do so, it was liable for damages sustained on account of injuries received by reason of the unsafe condition in which it was left, provided the injured party used care commensurate with the apparent danger. And as to whether due care was used or not is a question of fact for the jury. The complaint at least contains proper averments: Indianapolis etc. R. R. Co. v. State, 37 Ind. 489; Indianapolis etc. R. R. Co. v. Stout, 53 Ind. 143; Evansville etc. R. R. Co. v. Crist, 116 Ind. 446; 9 Am. St. Rep. 865; Evansville etc. R. R. Co. v. Carvener, 113 Ind. 51.

It is urged that the evidence is not sufficient to sustain the verdict, and it is insisted that it was contributory negligence to leave a team of horses so near the railroad in charge of a girl of the age of the appellee.

There is evidence authorizing the jury to have found that the horses were gentle and docile, that appellee had been accustomed to driving one of them a great deal during the year prior, and had driven both of them together quite a number of times within a short time previous to the injury; that she had driven in the vicinity of the railroads and cars and across railroads, and that the horses were not afraid of or liable to be frightened by the cars, and did not frighten at

them, and there was no reason to apprehend that the horses would become frightened at the cars, or that there would be any danger in leaving them in charge of the appellee. The appellee at the time of the injury was twelve years of age, had been traveling for the past year with her father, selling organs, and was accustomed to driving and handling these same horses. On this occasion the horses became frightened at a train coming from behind and passing them, and turned around and started across the railroad at quite a rapid gait, though it does not appear from the evidence that the horses appeared to be extraordinarily frightened, or that they were beyond the control of the appellee and running away, but the appellee testifies that as they went up the grade to the railroad she put her foot on the brake, and that she would have stopped them if it had been level, but that as the front wheels of the wagon dropped down when it went over the railroad it threw her out. The horses were stopped immediately afterwards in a very short distance from the track, and nothing whatever was injured. The appellee was using all the care she could, under the circumstances, in crossing the track, and was guilty of no fault. The jury may have properly found from the evidence in the case that the horses were started by the train, but the appellee was able to manage them, and had materially checked their gait when they reached the railroad track, and would have controlled and stopped them had it not been for the dangerous condition of the crossing, by reason of which she was thrown from the vehicle, and we think the evidence sustains the verdict. It does not present a case of horses taking fright at the lawful movement of the cars, and becoming unmanageable, running away and upsetting the vehicle, or running against an obstacle and injuring a party. In such a case the railroad company would be guilty of no wrong. The horses took fright at the lawful act of the company, and the injury would be the result of the fright to the horses. But not so in the case at bar. The fright to the horses does not appear from the evidence to have been such as would have prevented the appellee from controlling them and avoiding all injury had she not been compelled to cross the track at a point where the appellant had failed to put it in repair, as it was its duty to do, and by reason of its negligence it had become and was dangerous to cross with vehicles, and in crossing the track at such point, by reason of

such condition of the crossing, appellee was thrown from her buggy and injured, without her fault.

Some objections are urged to the instructions given in the case, particularly to the action of the court in refusing to give the third instruction requested by the appellant as requested, and modifying the instruction, and giving it as modified. There was no error in the instruction as given, and the instruction as requested was not applicable to the facts in the case, and would have had a tendency to mislead the jury, and the court properly modified it. We think the instructions fairly presented the law of the case, and we find no error in the record for which the judgment should be reversed. Judgment affirmed, with costs.

RAILROAD COMPANIES-DUTY To Maintain SAFE CROSSINGS. — Railway company must maintain street or highway crossings in a reasonably safe condition when it has changed or altered them for its own convenience: Louisville etc. R. R. Co. v. Phillips, 112 Ind. 59; 2 Am. St. Rep. 155; Teth erow v. St. Joseph etc. R'y Co., 98 Mo. 74; 14 Am. St. Rep. 617; Missouri Pac. R'y Co. v. Bridges, 74 Tex. 520; 15 Am. St. Rep. 856; Terre Haute etc. R. R. Co. v. Clem, 123 Ind. 15; 18 Am. St. Rep. 303; Kansas City ▼. Kansas City etc. R'y Co., 102 Mo. 633. As to evidence admissible to show the condition of the crossing, see Phelps v. Winona etc. R. R. Co., 87 Minn. 485; 5 Am. St. Rep. 867; Birmingham etc. R'y Co. v. Alexander, 93 Ala. 133.