Burns' Ann. St. 1901, and involves the proper construction of section 7255, Burns' Ann. St. 1901 (Acts 1899, p. 569, c. 255). The facts specially found by the trial court are as follows: That on the 1st day of September, 1903, appellees were the owners in fee of a certain lot in the city of Indianapolis, upon which a boiler house was situated, bordering on the north line of Anchor street, and in the basement of said boiler house, and about 10 feet from the north line of said street, a 60 horse-power steam boiler was permanently located; that on said date appellees entered into a contract with Hays Bros. to lay under ground and through said street, from the southwest corner of said lot a 7-inch steam pipe, and to connect said pipe with said boiler; that, in pursuance of said contract, Hays Bros. contracted with one Maxey to dig a trench from the southwest corner of said lot through said street to the first alley running north and south, to fill up said trench, restore the street to its original condition, and haul away the remaining dirt; that, in pursuance of said contract, Maxey employed appellant to haul away the dirt dug out of said trench, and to haul sand to be used in refilling the same and in replacing the brick on said street; that said pipe was afterwards laid in such trench and permanently connected with said boiler, and used to transmit steam for heating purposes under a franchise from said city, but no part of said pipe was laid, and no part of said work was done on that part of said street bordering upon said lot, except at the southwest corner of said lot; that in pursuance of said employment appellant hauled away the dirt dug from said trench, and hauled sand for the purposes aforesaid, which hauling was reasonably worth $7; that within 60 days after doing said work appellant filed in the office of the recorder of Marion county written notice of his intention to hold a mechanic's lien upon said lot for the amount of said labor claim, which notice was duly recorded; that said sum was due and unpaid, and it became necessary for appellant to employ an attorney to prosecute this suit, and the services of said attorney were reasonably worth $15. The statute upon which appellant bases his alleged lien reads as follows: "That contractors, sub-contractors, mechanics, journeymen, laborers and all persons performing labor or furnishing material or machinery for the erection, altering, repairing or removing any house, mill, manufactory, or other building, bridge, reservoir, system of waterworks or other structure, or for constructing, altering or repairing or removing of any sidewalk, walk, stile, well, drain, sewer or cistern, may have a lien separately or jointly upon the house, mill, manufactory, or other building, bridge, reservoir, system of waterworks or other structure, side walk, walk, stile, well, drain, sewer or cistern which they may have erected, altered, repaired or

removed, or for which they may have furnished material or machinery of any description, and on the interest of the owner of the lot or parcel of land on which it stands or with which it is connected to the extent of the value of any labor done, material furnished or either." We have not been favored with a brief on behalf of appellees, and are not advised of the exact ground upon which the trial court rested his denial of appellant's alleged lien.

The generation of steam, to be distributed through pipes laid in the streets under a franchise granted by the municipality, and supplied to patrons for heating purposes, is the function of a manufactory. The building equipped with machinery for the generation of steam for such use permanently located upon appellees' lot was a manufactory within the meaning of the statute above quoted. Bates Mach. Co. v. Trenton, etc., R. Co., 70 N. J. Law, 684, 58 Atl. 935, 103 Am. St. Rep. 811. See Burke v. Mead, 159 Ind. 252, 260, 64 N. E. 880. In the case of Commonwealth v. Lowell Gas Light Co., 12 Allen, 75, it was said by Chief Justice Bigelow: "A gas company is strictly a manufacturing corporation, and comes within the letter, as well as the spirit, of the act. Instead of sending its manufacture to its customers in packages, or by other vehicles, it distributes it through pipes which are connected with and form a necessary appendage to its works." The mains and pipes laid down in the streets and elsewhere to distribute the steam among those who are to enjoy the beneficial use of it are clearly a part of the apparatus necessary to accomplish the objects for which such heat plant was erected. They constitute a part of the machinery by means of which the business of supplying heat to others must be carried on. The laying of these connecting pipes, essential to the exercise of the franchise held by appellees, was a part of the erection of the manufacturing plant. The contract for the excavation of the trench, the laying of the pipe therein, and the restoration of the street to its original condition, called for the performance of labor in and upon the erection of said manufactory. The hauling of materials to be used in the performance of the work, and hauling away the surplus earth excavated, were incidental matters inseparably connected with the principal undertaking, and constituted items of labor for which a lien may be acquired. Bates v. Trenton, etc., R. Co., supra; Fowler v. Pompelly, 76 S. W. 173, 25 Ky. Law Rep. 615. The work which appellant performed being directly and necessarily connected with the erection of appellees' heating system, as already shown, it was an immaterial matter whether such work was performed upon the particular premises to which the labor lien primarily attached, or upon the street in front of the same, or at some point where appellees owned merely an easement or were operating under a license

from the city. The claim sued upon and found to be due and unpaid is within the protection of the statute, and appellant, having taken the steps necessary to perfect a lien upon the real estate described, was entitled to a decree of foreclosure. Steger v. Arctic Refrigerating Co., 89 Tenn. 453, 14 S. W. 1087, 11 L. R. A. 580; Beatty v. Parker, 141 Mass. 523, 6 N. E. 754; Hughes v. Lambertville Electric Co. (N. J. Ch.) 32 Atl. 69; Badger Lumber Co. v. Marion Water Co., 48 Kan. 182, 29 Pac. 476, 15 L. R. A. 652, 30 Am. St. Rep. 301; Southern Electric Co. v. Rolla, etc., Co., 75 Mo. App. 622; National Foundry & Pipe Works v. Oconto Water Co. (C. C.) 52 Fed. 43.

The conclusions of law stated were erroneous, and the judgment is reversed, with directions to restate conclusions of law in appellant's favor and to render judgment accordingly.

INDIANA NATURAL GAS & OIL CO. V. BEALES. (No. 20,757.)

(Supreme Court of Indiana. Jan. 4, 1900.) MINES AND MINERALS-OIL AND GAS LEASECONSTRUCTION.

An oil and gas lease, executed on March 29, 1888, provided that the lessee or his assigns should have the right to operate on the land for petroleum, gas, etc., for 12 years, or so long after the expiration of such term as petroleum, etc., could be procured in paying quantities, "or the payments" provided for are made according to the terms of the lease, which required the commencement of operations within a year, "or in lieu thereof for delay" that the lessor pay $21.50 per annum in advance to a certain specified bank for the benefit of the lessee. No mining operations were conducted under the lease, but yearly payments in advance were deposited as provided for and until the year ending March 28, 1901. Held, that the lessor's grantee, without notifying the holder of the leasehold to proceed to develop the premises, was not entitled to have the lease canceled by merely serving a notice on April 5, 1900, that it had expired.

Appeal from Superior Court, Madison County; H. C. Ryan, Judge.

Action by Idelia Beales against the Indiana Natural Gas & Oil Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court (74 N. E. 551), defendant appeals. Transferred from Appellate Court under section 1337j, Burns' Ann. St. 1901. Reversed.

W. O. Johnson, Brownlee & Browne, Blacklidge, Shirley & Wolf, and Lovett & Slaymaker, for appellant. Custer & Cline, for appellee.

JORDAN, J. Appellee, on February 13, 1903, instituted this action in the Grant circuit court to quiet title to certain real estate situated in Grant county, Ind., and thereby annul and cancel a certain gas and oil lease herein in controversy and of record in the recorder's office of said county, which, as alleged in the complaint, was a cloud on appellee's title. Upon change of venue the cause was tried in

the Madison superior court. There was a finding in favor of appellee, and a decree was rendered quieting her title to the real estate involved and appointing a commissioner to enter a cancellation of the lease on the margin of the record in which said instrument was recorded. The motion for a new trial, stating the statutory grounds, was denied, and this ruling is assigned as error. The evidence given upon the trial, as exhibited by the record, establishes beyond dispute the following facts:

On March 29, 1888, one John Roush was the owner in fee of the real estate in question, situated in Grant county, Ind., and on said day he, together with his wife, executed to Leonard H. Best a certain gas and oil lease upon said land. Through several assignments, appellant company, on July 1, 1892, became the owner and holder of this lease. The instrument in question was recorded in the proper record in the office of the recorder of Grant county on April 11, 1888. On the 16th day of December said Roush and his wife conveyed the leased premises to appellee, Idelia Beales, and she from that time has continued to be the owner thereof. The lease stipulates and recites that the lessors, Roush and wife, leased to the lessee, Leonard H. Best, his administrators, and assigns, the real estate therein described, being the same as that described in the complaint, "for and in consideration of the sum of $10.75, and for the further consideration hereinafter mentioned, and on account of the covenants hereinafter contained for the purpose and with the exclusive right of drilling, mining and operating for petroleum, gas or any mineral substances on said land, and appropriating said products so obtained to his own use and benefit, except as hereinafter provided, and removing the same for the term of twelve years, and so long thereafter as petroleum, gas or mineral substances can be procured in paying quantities, or the payments hereinafter provided for are made according to the terms and conditions attaching thereto." The instrument then provides that the lessee shall have sufficient water and wood on the premises for drilling and mine operation and the right to erect upon and remove from said premises all necessary building machinery, tanks, pipe lines, and other property necessary for the prosecution of said business, with the right of way for the pipe lines and for operations. It is further provided that the first party (the lessor) shall have one-eighth part of all petroleum or mineral substances obtained. That if gas alone is found in sufficient quantities to make it profitable to pipe the same to other localities, the grantor, or lessor, shall receive $100 per annum for each gas well and sufficient gas to heat and light his dwelling on said premises; said payment to be accepted by the party of the first part (the lessor) as a full consideration and in lieu of any other royalties. No part of the premises leased were to be used for the purpose of mining for mineral, petroleum, or gas, ex

cept by the lessee. The lease contains the following provision: "The party of the second part agrees to commence operations for said drilling or mining purposes within one year from the execution of this lease, or in lieu thereof, for delay in commencing such operations, and as a consideration for the agreements contained herein, thereafter pay to the said party of the first part [the lessor] $21.50 per annum, payable in advance on the 29th day of March in each year, until such operations are commenced and a well completed. A deposit to the credit of the party of the first part [lessor] in the Marion Bank of Marion, Indiana, shall be considered as payment under the terms of this lease. Should said party of the second part fail to make such payments or either of them, within thirty days from the time the same is due, then this lease shall be null and void, and of no effect."

The appellant company did not take possession of the leased premises, and no gas or oil well was drilled thereon by it or by any other person under said lease. Appellee, it appears, authorized her husband to act as agent in collecting the rentals under the lease. It is shown that all payments required by said lease to be paid in lieu of the drilling of wells had been paid to the owners of the said real estate; that is, to the appellee and her grantors, and by them accepted at all times during the entire term of 12 years, until March, 1900. No money deposited had been received by appellee since that time. The rentals had always been paid by a deposit at the Marion Bank in the city of Marion, Ind., as provided in the contract. On

April 5, 1900, the following notice was mailed by the husband and agent of appellee to appellant: "Jonesboro, Ind., April 5, 1900. Indiana Natural Gas and Oil Co., Chicago, Ill. I herewith notify you that your lease expires March 25, 1900, on the land now owned by Idelia Beales in sections 10 and 15, township 23 north, range 8 east, Grant county, Indiana. I kindly ask you to release said lease from the records of Grant county. Respectfully, Idelia Beales." Receipts for the years 1896, 1897, 1898, and 1899 from appellee to appellant for sums due in lieu of drilling under said lease are shown by the evidence. It was agreed by the parties and made a part of the evidence at the trial that on the 16th day of March, 1900, appellant deposited to the credit of the appellee the sum of $21.50 in the Marion Bank at Marion, Ind.; that on March 1, 1901, a like sum was deposited in the same bank for the same purpose; on February 25, 1902, a like deposit for the same purpose was made in the same bank; and on March 13, 1903, a like deposit in the same bank and for the same purpose was made, and it appears that certificates of deposit were made to appellee for each of said sums by the said Marion Bank. No notice whatever was ever given to the Marion Bank of Marion by appellee that it should receive no more money on deposit on account of said lease, or that said bank should no longer act

as agent of appellee for that purpose, and no notice of the revocation of the agency of said bank by appellee was at any time given to appellant.

It will be noted that, under the terms of the lease, or contract, in dispute, the real estate herein involved was leased to the lessee, through whom appellant company claims by assignment, for the purpose of drilling, mining, and operating for petroleum, gas, etc., for the term of 12 years, and so long after the expiration of such term as petroleum, gas, or mineral substances could be procured in paying quantities, "or the payments thereinafter provided or made according to the terms and conditions attaching thereto." The lease or contract in question stipulated that the lessee should commence operations for such drilling or mining within one year from its execution "or in lieu thereof, for delay in commencing such operations thereon, pay to the party of the first part [the lessor] $21.50 per annum in advance on the 29th day of March in each year, until such operations are commenced and a well equipped." It was provided and agreed by the parties to the contract that a deposit of the money in the bank designated to the credit of the lessor should be considered as a payment under the terms of the lease. It appears that no operations under the lease were commenced, but for delay therein appellant paid as provided each year in advance $21.50, which money appellee actually received for the years 1895 to 1899, inclusive. On the 16th day of March, 1900, without any objection or notice from her that she would not receive the same, or that appellant should proceed to explore the premises under the contract, appellant company deposited the stipulated amount in the bank designated as a payment in advance for the delay during the year ending March 28, 1901. After this latter deposit, instead of notifying appellant that further payments would not be accepted, or that it must proceed to commence operations on the premises under the contract, on the 5th of April, 1900, appellee notified appellant that its lease had expired, and requested that it cancel the same. Appellant did not comply with this notice, but thereafter continued to deposit the stipulated payment for the delay until March, 1903. On the 13th day of February, 1903, without giving appellant any notice other than that given on the 5th day of April, 1900, appellee commenced this action.

This appeal, under the contract involved and the facts established, falls within, and must be controlled by, the rule affirmed and enforced in the decisions of this court in the appeals of the Consumers' Gas Trust Co. v. Littler, 162 Ind. 320, 70 N. E. 363; Consumers' Gas Trust Co. v. Howard, 163 Ind. 170, 71 N. E. 493; Consumers' Gas Trust Co. v. Ink, 163 Ind. 174, 71 N. E. 477; Consumers' Gas Trust Co. v. Worth, 163 Ind. 141, 71 N. E. 489, and cases there cited; Lafayette

Gas Co. v. Kelsey (Ind. Sup.) 74 N. E. 7, and authorities there cited; and New American, etc., Co. v. Troyer (at this term) 76 N. E. 253. It would subserve no useful purpose for us to add anything further to that which has been said in these cases, as we are satisfied that the principles therein asserted are correct and should be adhered to under the facts in the case at bar, and the latter must be ruled thereby. It follows, therefore, that appellee was not entitled to quiet her title as against the lease, or contract, in' question, and that the trial court erred in denying appellant's motion for a new trial.

Judgment reversed, and cause remanded.

PITTSBURGH, C., C. & ST. L. RY. CO. v. NICHOLAS. (No. 20,665.)

(Supreme Court of Indiana. Jan. 5, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-PLEADING NEGLIGENCE OF FELLOW SERVANT.

A complaint alleged that plaintiff was employed as a brakeman; that the conductor, whom he was bound to obey, directed him to go upon a car to set the brake; that said car should have been cut loose from the train to check its speed and stop it at the proper point; that under such order plaintiff was upon said car, but the conductor negligently failed to cut the car loose and negligently gave the engineer the signal to stop the engine suddenly, violently throwing plaintiff from the car. Held, that such complaint was sufficient to show that the conductor owed plaintiff the duty either to cut off the car himself or to cause it to be done before giving the signal for the sudden stopping of the engine.

2. SAME.

Where a brakeman was directed by the conductor to go upon a freight car, and was injured by the conductor's negligence in giving orders as to the movement of the train, it was not necessary, in an action against the railroad company, to allege that the conductor knew of plaintiff's perilous position when the signal was given.

3. SAME-CUSTOMARY METHODS.

Every railroad company is charged with a continuing duty to exercise care for the safety of its servants, and cannot be absolved therefrom by suffering a negligent custom to be established in the conduct of its business. 4. SAME-ASSUMPTION OF RISK-NEGLIGENCE OF SUPERIOR.

The assumption of the ordinary risks of the service of a brakeman does not include the unexpected and unknown negligence of a conductor while exacting and receiving implicit obedience to a specific order.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 570.]

5. EVIDENCE-OPINION OF EXPERIENCED WIT

NESS.

The rule excluding opinions was not violated in admitting the testimony of witnesses experienced in the line of work covered by the testimony and possessing special knowledge and skill in that behalf.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2196, 2343.] 6. APPEAL-ADMISSION OF TESTIMONY.

There was no reversible error committed by prematurely admitting evidence out of its logical order.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4132.]

MONTGOMERY, J. Appellee brought this action for damages resulting from a personal injury received while in the employ of the appellant as a brakeman, and recovered a judgment of $7,500. This judgment was affirmed by division No. 1 of the Appellate Court, and from that division this appeal is prosecuted.

By proper assignment of errors it is charged in substance that the decision of the Appellate Court is erroneous in holding that the circuit court did not err in overruling (1) appellant's demurrer to the complaint, (2) its motion for judgment upon the answers of the jury to special interrogatories, and (3) its motion for a new trial. It appears from the complaint that appellee was employed in appellant's yards in the city of Indianapolis, and at the time of receiving his injury was engaged in making up trains; that the conductor to whose orders he was bound to conform, desiring to place a certain refrig erator car on a particular track, directed him to go upon the car for the purpose of setting the hand brake thereon, after said car should have been cut loose from the train or cut of cars to which it was attached, and thereby checking its speed and stopping it at the proper point; that in pursuance to such order, and in conformity thereto, appellee was at his post upon said car, and the conductor ran the train upon said track, but negligently failed to cut said car loose from the train and engine to which it was attached and which was propelling the same, and without having done so, or knowing that the same was done, negligently gave the engineer in charge of said engine a signal to stop said engine suddenly and quickly, whereby the car upon which appellee was stationed was caused to stop suddenly, and he was thereby violently

thrown from the top of said car to the ground beneath said train, and injured.

The complaint is in a single paragraph, and the cause of action stated is founded upon section 7083, Burns' Ann. St. 1901, known as the "Employers' Liability Act." It is conceded by appellant's counsel that the complaint sufficiently shows that at the time of receiving his injury appellee was acting under orders of a superior, to whose orders he was subject and required to yield obedience.

It is insisted that negligence on the part of the appellant is not sufficiently charged, because it is not alleged that it was the duty of the conductor to cut off said car, or that he knew of appellee's perilous position at the time he gave the stop signal of which complaint is made. It is shown that the conductor was in charge of the train and of the work in hand. In pleading it is not necessary that a duty be charged in specific terms, but it is essential and sufficient that particular facts and circumstances from which the duty arises be declared. It is a matter of common knowledge that the sudden stopping of an engine propelling a train of cars will result in a violent jerk of the cars at the end of the train remote from the engine. The conductor must have known this fact and its probable effect upon appellee, and his act in causing the train to be stopped in the manner and under the circumstances alleged was negligence. Taking all the averments of the complaint together, it does sufficiently appear that the conductor owed appellee the duty either to cut off the car himself, or to cause it to be done before giving the signal for a sudden stopping of the engine. It was not necessary to allege notice or knowledge on the part of the conductor of appellee's position on the car. It is averred that appellee was there in obedience and conformity to the specific order of the conductor, and, this being true, the conductor was bound to know and was chargeable with knowledge of his situation with all of its attendant perils. The negligence of appellant's conductor in causing the car and the train to be quickly and suddenly stopped as alleged was the proximate cause of appellee's injury, and as pleaded constituted a cause of action under the provisions of the statute mentioned. No error was committed in overruling appellant's demurrer to the complaint. Louisville, etc., R. Co. v. Wagner, 153 Ind. 420, 53 N. E. 927; Terre Haute, etc., R. Co. v. Rittenhouse, 28 Ind. App. 633, 62 N. E. 295; Thacker v. Chicago, etc., R. Co., 159 Ind. 82, 64 N. E. 605, 59 L. R. A. 792; Republic, etc., Co. v. Berkes, 162 Ind. 517, 70 N. E. 815.

The answers of the jury to special interrogatories show, among other facts, that under the common practice and manner of conducting work in the yards, after receiving instructions, brakemen were expected to look after their own safety in the movement of cars, without signals or warning, that it was the duty of the conductor to cut off said car

before appellee fell from it, and that the accident occurred in the nighttime, about 3 o'clock a. m. It is argued that since appellee was expected to look after his own safety while engaged in moving cars appellant's conductor owed him no duty while giving the stop signal of which complaint is made. This argument is palpably untenable. Appellant is charged with a continuing duty to exercise care for the safety of persons in its service and under its control, and cannot be absolved therefrom by suffering a negligent custom to be established in the conduct of its business. Appellee's assumption of the ordinary risks of the service did not include the unexpected and unknown negligence of a superior servant while exacting and receiving implicit obedience to a specific order. The act of appellant's conductor in causing the sudden stoppage of the car was negligence, and by positive statute such negligence is made actionable when the injury results therefrom to one in the exercise of due care, while yielding compulsory obedience and conformity to the order of its author. Section 7083, Burns' Ann. St. 1901. American Rolling Mill Co. v. Hullinger, 161 Ind. 673, 680, 67 N. E. 986, 69 N. E. 460; Terre Haute, etc., R. Co. v. Rittenhouse, supra; Gould Steel Co. v. Richards, 30 Ind. App. 348, 66 N. E. 68; Reno Employers Liability Acts, §§ 247, 249; Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 South. 440; Taylor v. Evansville, etc., R. Co., 121 Ind. 124, 131, 22 N. E. 876, 6 L. R. A. 584, 16 Am. St. Rep. 372. Appellant's motion for judgment in its favor was therefore rightly overruled.

In the motion for a new trial complaint is Imade of the admission of the testimony of certain railroad men as to the method of handling trains and cars in appellant's yards. These men are shown to have been experienced in the line of work covered by their testimony and to possess special knowledge and skill in that behalf, and the rule excluding opinions was not violated in admitting their testimony, nor was any reversible error committed by prematurely admitting this evidence out of its logical order.

Appellant complains of the giving of instruction No. 1, requested by appellee. This instruction informed the jury as to the issues, and advised them that appellee was entitled to recover if he had proved the material allegations of his complaint, and that the burden of proving the material allegations of the second paragraph of answer which charged an assumption of the risk was upon appellant. Appellant's counsel contend that the complaint was insufficient, and therefore establishing its averments would not justify a recovery. This contention has already been considered and held untenable. It is further insisted that the burden was not upon appellant to prove the allegations of its affirmative paragraph of answer. Appellee, under his relation to appellant, was required to obey the orders of the conductor over him,