of the act is attendant with a degree of danger, yet in such case it is not requisite that such servant shall balance the degree of danger, and decide with absolute certainly whether he must do the act or refrain from it." In considering the question a distinction is made between an order in the nature of a general direction as to the work which would not have in it anything of coercion whatsoever, while the danger might be one thoroughly know and appreciated by the servant, and an order which might be of such an urgent character and given in such a direct and imperious manner that the servant's free will would be, in part at least, overcome. Standard Cement Co. v. Minor, 54 Ind. App. 301, 306, 100 N. E. 767; Stucke v. Orleans R. Co., 50 La. Ann. 188, 23 South. 342; Lee v. Woolsey, 109 Pa. 124. In the case last cited it is said: "If an employee is in haste called upon to execute an order requiring prompt attention, he is not to be presumed necessarily to recollect a defect in machinery, or a particular danger connected with his employment, so as to avoid it. A prompt and faithful employee, suddenly called upon by a superior to do a particular act, cannot be supposed to remember at the moment a particular danger incident to its performance, of which he had previous knowledge; and it would be most unreasonable to demand of him the thought and care which might be exacted when there is more time for observation and deliberation." Wharton on Neg. § 219. [8] Whether or not the servant fully understood and appreciated the danger of obeying an order is ordinarily a question for the jury. Shannon v. Shaw, 201, 201 Mass. 87 N. E. 748; Cook v. St. Paul, etc., R. Co., 34 Minn. 45, 24 N. W. 311. [9] Where the servant clothed by the master with the authority to direct the work and the servant to whom the directions are given do not stand upon an equal footing, it cannot be said as a matter of law that the servant is precluded recovery upon the ground that he assumed the risk. Chicago, etc., R. Co. v. Sanders, 42 Ind. App. 585, 86 N. E. 430. [10] The question of proximate cause was one for the jury. There is evidence from which the jury could find that the giving of the order was the proximate, or at least a concurring, cause of the injury. Davis v. Mercer Lumber Co., 164 Ind. 413, 423, 73 N. E. 899; King v. Inland Steel Co., 177 Ind. 201, 96 N. E. 337, 97 N. E. 529; Louisville, etc., R. Co. v. Hynes, 47 Ind. App. 507, 91 N. E. 962; Beaning v. South Bend, etc., Co., 45 Ind. App. 267, 90 N. E. 786. [11] Taking the evidence as a whole, it is sufficient to sustain the verdict of the jury, and the verdict is not contrary to law. It is finally insisted that the court erred in the giving of instruction No. 11. It is claimed this instruction is erroneous because the jury were in effect informed that appellee did not as sume the risk of complying with said order if he used reasonable care. The instruction was applicable to the facts, and, when considered with the other instructions and the legal principles herein announced, it was not erroneous. Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 336, 27 N. W. 741. No reversible error being shown, the judgment of the trial court is affirmed. APPELLATE COURT OF INDIANA. DIVISION No. 1. RAYNES STAATS-RAYNES CO. (No. 10245.)* 1. MASTER AND SERVANT - WORKMEN'S COMPENSATION -REVIEW-LEGAL CONCLUSIONS. That an accident arises out of the employment within the meaning of the Workmen's Compensation Act (Laws 1915, c. 106) is in the nature of a legal conclusion of the Industrial Accident Board. (For other cases, see Master and Servant, Dec. Dig. § 417[6].) 2. MASTER AND SERVANT — WORKMEN'S -VERDICT AND FINDINGS. COMPENSATION A finding in a proceeding under Workmen's Compensation Act need not affirmatively show a lack of evidence or an inability to find; failure to find alone being equivalent to a finding against a party on whom the burden of proof rests. (For other cases, see Master and Servant, Dec. Dig. § 416.) 3. MASTER AND SERVANT - WORKMEN'S COMPENSATION -REVIEW-BURDEN OF SHOWING ERROR. An appellant in a proceeding under Workmen's Compensation Act must bring to the court a record which affirmatively shows reversible error, and not merely a finding containing only evidentiary facts susceptible of two inferences. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Appeal from Industrial Board. Proceedings by Burt F. Raynes for compensation under the Workmen's Compensation Act, opposed by the Staats-Raynes Company. From a denial of an award by the full Industrial Board, plaintiff appeals. Affirmed. Foley, O'Mara & Roach, of Terre Haute, for appellant. A. E. Schmollinger, of Noblesville, and Taylor, White & Wright, of Indianapolis, for appellee. Decision rendered, June 6, 1918. 119 N. E. Rep. 809. HOTTEL, J. This is an appeal from the action of the full Industrial Board denying appellant's application for compensation for personal injuries alleged to have been received by him December 26, 1916. The case is one which has been before the court on a statement of facts certified to it by said Industrial Board. The opinion then rendered on the question of law so presented was filed December 21, 1917. See In re Raynes, 118 N. E. 387. The record brought to this court in this appeal sets out the statement of facts which it says were certified to this court "in connection with this cause." It also appears from the record that such statement was so certified after a full hearing by said board and while the case was being held under advisement. The record then shows that on January 15, 1918, the full board made the following finding and award. Then follows another entry, which shows, among other things, the following, viz.: And the full board heard additional evidence and took said cause under advisement. This is followed by a finding of facts by the board which, in all material respects, is substantially the same as the statement of facts upon which the case was certified to this court, except the last finding of the board contains an additional statement as follows: "The evidence does not show, and the full board cannot find therefrom, that the injury of the plaintiff resulted from an accident arising out of his employment." Upon the facts so found, the board concluded and ordered that the appellant take nothing, and that he pay the costs of the proceeding. From this order appellant appeals and assigns as error that "the award of the full board is contrary to law." The appellant has not brought to this court, in this appeal, the additional evidence heard by said board at its hearing had after the rendition of said opinion. Indeed, the record in the present appeal contains none of the evidence offered in the case at any hearing of said board. It follows that no question depending for its correct determination upon the evidence can be considered. Rose et al. v. Chicago, etc., Co., 181 Ind. 658, 105 N. E. 241; Newman v. Horner, 55 Ind. App. 298, 103 N. E. 820; McCray v. Whitney, 56 Ind. App. 94, 104 N. E. 979. It is appellant's contention that the additional statement contained in the present finding of the board, which we have quoted supra, is a conclusion of law and adds nothing to the finding. [1, 2] It is true, as appellant contends, that the question whether an accident arose out of the employment is in the nature of a legal conclusion. This question had consideration by this court in the case of Columbia School Supply Co. v. Lewis, 115 N. E. 103, and H. F. Zeitlow v. Smock, 117 N. E. 665. See, also, cases there cited. These cases expressly hold that the questions whether an injury resulted from accident and whether it arose out of the employment, in their last analysis, involve a legal conclusion. It is true that the statement here involved contains the additional words "the evidence does not show," but this, if it be given its full import, could mean no more than that there was no evidence on said issue, and hence is the equivalent of a failure to find upon such issue and adds nothing to the other facts expressly found. A finding need not affirmatively show a lack of evidence or an inability to find. The failure to find alone is equivalent of a finding against the party on whom the burden of proof rests. It follows that the additional finding or statement, quoted supra, adds nothing to said finding; but it does not follow that there must be a reversal of the award in this case. We have said, supra, that the remainder of the present finding is substantially, if not identically, the same as the certified statement of facts upon which the former opinion of this court was rendered. Among the questions then submitted for the court's determination was the question, "Did the accident arise out of his employment?" As affecting such question and the other questions then submitted, this court said: "The certified statement contains a number of evidentiary facts from which the board has not deduced the ultimate facts essential to a direct answer to these questions." The court, in its opininon, then indicates the ultimate facts essential to a determination of said question, and continues: "These are questions of ultimate fact which it is the province of the board rather than this court to deduce. In the one case it is our judgment that the accident arose out of and in the course of the employment; * * * in the other case our judgment is otherwise.' The ultimate facts indicated in said opinion as essential are not supplied by the present finding of facts, but, on the contrary, only the evidentiary facts indicated in our former opinion are contained in said finding of facts, and hence there is a failure to find said essential facts. This, as before indicated, is the equivalent of a finding against the party who has the burden of the issue upon which the finding is silent, or lacking in the ultimate facts essential to its support. The burden in this case was upon the appellant. Haskell & Barker, etc., Co. v. Brown, 117 N. E. 555, and cases there cited. [3] It was his duty to bring to the court a record which affirmatively shows reversible error. This required him, as affecting the questions which he seeks to present by his appeal, to bring to the court a finding of facts which affirmatively shows ultimate facts, admitting of but one conclusion, viz. a conclusion favorable to him. Fairbanks v. Warrum et al., 56 Ind. App. 337, 344, 104 N. E. 983, 1141; Graves v. Jenkins, 58 Ind. App. 500, 502, 108 N. E. 531; Gary, etc., Co. v. Hacker, 58 Ind. App. 618, 108 N. E. 756. Instead, he brings to the court, and asks a reversal on, a finding containing only evidentiary facts, which this court has before held to be susceptible of either of two inferences, which it was the province of the Industrial Board, rather than this court, to draw. Such board, by its award, has drawn said inferences against appellant, and by its inferences, in the absence of the evidence, this court is bound. If the appellant was of the opinion that the inferences drawn by said board were not warranted by the evidence he should have challenged its sufficiency and brought it to this court for review. A finding of facts, though evidentiary in character, cannot take the place of the evidence to make effective a challenge of the sufficiency of the evidence. The award of the Industrial Board is affirmed, with 5 per cent increase, as provided by Acts 1917, p. 154, § 3. COURT OF APPEALS OF KENTUCKY. LOUISVILLE & N. R. CO. บ. MULLINS' ADM'X.* LIABILITY ACT — 1. COMMERCE - FEDERAL EMPLOYER'S A railway signal maintainer, who was furnished by his employer, an interstate carrier, a tricycle to make his rounds, was engaged in interstate commerce when returning to his home after leaving the last signal, within the meaning of the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665].) (For other cases, see Commerce, Dec. Dig. § 27[8].) (For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.) 2. MASTER AND SERVANT—INJURIES TO SERVANT-DUTIES OF MASTER. While it is true that a railway signal maintainer on the track with a tricycle must exercise ordinary care to learn of the approach of trains and keep out of their way, the railroad also owes him the duty to maintain a headlight on its engines in the nighttime. (For other cases, see Master and Servant, Dec. Dig. § 137[7].) 3. NEGLIGENCE - EMPLOYER'S LIABILITY ACT-CONTRIBUTORY NEGLIGENCE-EFFECT. Under federal Employers' Liability Act, contributory negligence of a railroad employee on the tracks with a tricycle in not ascertaining from his time card or from the signal lights that a train was due did not defeat his cause of action for negligence of the railroad in not having a headlight on the engine in the nighttime, but only lessened the damage. (For other cases, see Negligence, Dec. Dig. § 101.) * Decision rendered, June 14, 1918. 203 S. W. Rep. 1058. |