HOTTEL, P. J. This is an appeal from a judgment for $250 obtained by the appellee in an action brought by it against the appellant for damages to a house resulting TOLEDO, ST. L. & W. R. CO. v. HOME INS. from a fire alleged to have been caused by CO. OF NEW YORK. (No. 8,001.) appellant's negligence. The appellee had (Appellate Court of Indiana, Division No. 1. written a policy of insurance on such house and claimed to be subrogated to the rights

1. RAILROADS (8 453*)-Fires-CaRE REQUIR-of the owner thereof by reason of having paid

Proof of a fire after a locomotive has sarily overtax the power of such locomotive, passed will not of itself warrant an inference and thereby caused it to emit unusually of negligence in the equipment or the opera-large and dangerous sparks and coals of

[Ed. Note. For other cases, see Railroads, fire, etc.

Cent. Dig. §§ 1709-1716, 1733; Dec. Dig. § The third paragraph is practically the 480.*] same as the first, except that the only neg5. RAILROADS (8 482*)-OPERATION-FIRES-ligence charged is appellant's failure to use SUFFICIENCY OF EVIDENCE. a safe and sufficient spark arrester on its locomotive, or other proper appliance to prevent the emission of unusually large and

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

dangerous sparks and coals of fire from such locomotive, etc.

The overruling of the motion for new trial is the only error relied on. Such motion contains numerous grounds; but appellant, in its brief, presents and urges only two of such grounds, viz., that the court erred in overruling appellant's motion to direct a verdict in its favor, and that the verdict of the jury is not sustained by sufficient evidence. These grounds may be considered together, as they, in effect, present the same question. It is conceded by appellant that the evidence shows "that appellant's passenger train passed the house in question puffing and blowing a whistle, running fast, and that it emitted numerous sparks, some of which were as large as a woman's finger, and that in about 20 minutes after the train passed the house it was found to be on fire." It is insisted that such evidence in no wise tends to prove either defective equipment of the locomotive or negligent operation; that there is nothing in the evidence "to show that a locomotive equipped with a spark arrester in good repair and carefully operated by competent employés would not have emitted and thrown sparks and coals of fire of the same size, in the same quantity, for a like distance, and with the same effect as those emitted by the locomotive in question."

[1] It may be admitted, as appellant contends, that a railroad company has the right to use fire in the operation of its locomotive, and that it is a matter of universal knowledge that no locomotive can be so operated that it will not emit fire at times, and that such right to use fire relieves such company from liability for injury to property resulting from the escape of fire which necessarily results from the operation of its locomotives; that it is only liable, for its negligence in failure to properly equip such locomotive with the proper spark arrester or for negligence in its operation of such locomotive in such a manner as to negligently cause or permit the emission of sparks therefrom. Lake Erie, etc., R. Co. v. Gossard, 14 Ind. App. 244, 245, 42 N. E. 818; New York, etc., R. Co. v. Baltz, 141 Ind. 661, 36 N. E. 414, 38 N. E. 402; Indianapolis, etc., R. Co. v. Paramore, 31 Ind. 143; Toledo, etc., R. Co. v. Fenstermaker, 163 Ind. 534-538, 72 N. E. 561.

[2] This admission, however, does not necessitate the conclusion reached by appellant that there is no evidence in this case from which a jury could infer either that the appellant was negligently using on its locomotive at the time of such fire a defective spark arrester, or that it was at such time so operating its locomotive as to negligently cause it to emit sparks of fire in unusual size and quantities, and that the firing of the house in question, with the resulting damages thereto, was attributable to the one or the other of said causes,

Appellant contends that the "only way to prove negligent operation or construction by circumstantial evidence is: First, by proof of quantity, size, and character of the sparks actually thrown out; second, by proof by experts that sparks of such character would not be emitted from a locomotive in proper repair or properly operated"; and that proof of size and quantity of the sparks alone without supplementing it with the further proof indicated will not warrant an inference of negligence. In support of its contention appellant cites Peck v. New York Central, etc., R. Co., 165 N. Y. 347, 59 N. E. 206; Toledo, etc., R. Co. v. Fenstermaker, supra. While these authorities recognize that such negligence may be proved in the manner indicated by appellant, they do not support its position that this "the only way to prove" such fact by circumstantial evidence. The case of Peck v. New York Central, etc., 165 N. Y. 347, 59 N. E. 206, which lends strongest support to appellant's contention, recognizes the probative value and effect of evidence showing that sparks of unusual size and quantity were emitted from the locomotive in question, as is evidenced by the following language of the opinion in that case: "But while it was necessary for the plaintiff to affirmatively establish negligence on the part of the defendant either in the condition or in the operation of its engines for which the mere occurrence of the fire was not sufficient, it was not necessary that he should prove either the specific defect in the engine or the particular act of misconduct in its management or operation constituting the negligence causing the injury complained of. It was sufficient if the plaintiff proved facts and circumstances from which the jury might fairly infer that the engine was either defective in its condition or negligently operated. The emission of sparks unusual in quantity or character, or of an extraordinary size, such as would not be emitted from well-constructed locomotives in proper repair, would justify the jury in inferring negligence, and, though not shifting the burden of proof, would cast upon the defendant the duty of explanation."

[3] Whatever may be the rule in other jurisdictions, we think it is well settled by the decisions of this state that negligence in this character of cases, the same as in all other cases, is ordinarily a question of fact for the jury, and that on such question the appellate court will not substitute its judgment for that of the jury, where the evidence is of such a character that fair-minded men may honestly draw therefrom different conclusions. City of Franklin v. Harter, 127 Ind. 446, 448, 26 N. E. 882; Cole v. Searfoss, 97 N. E. 345-347; Malott v. Hawkins, 159 Ind. 127, 135, 63 N. E. 308; Indianapolis, etc., Co. v. Marschke, 166 Ind. 490-194, 495, 77 N. E. 945; W. C. Depauw Co. v. Stubble field, 132 Ind. 182, 185, 31 N. E. 796; Evans

ville R. Co. v. Berndt, 172 Ind. 697-701, 88 | Ind. 322, 333, 56 N. E. 766, and authorities N. E. 612. there cited; Baltimore, etc., R. Co. v. Reed et al., 98 N. E. 141, 142, and cases there cited.

[4] To the extent that proof of a fire after a locomotive has passed will not of itself warrant an inference of negligence in the equipment or operation of such train, appellant's contention is supported by Indiana decisions as well as by the decisions of other jurisdictions. The evidence in this case, however, shows more than that the property took fire after the engine passed.

If appellant be correct in its contention that negligence in such cases can never be proven by the size and quantity of the sparks except it be supplemented by expert proof showing that a locomotive properly operated with an approved spark arrester in proper repair would not emit such sparks, it must follow that evidence of the size and quantity of the sparks and the distance they are thrown, and the length of time they continued to burn, is without any probative force in determining such question.

On the other hand, if it be conceded that such evidence has any probative force, in determining such question, and all the authorities cited by appellant so hold, it follows that the weight to be given thereto and the inference to be drawn therefrom must

jury, unless the facts be of such a character that but one inference can be drawn therefrom, in which case it becomes the duty of the court, under the authorities before cited, to draw the inference.

[5] In addition to the facts before indicated as conceded by appellant to have been proven, there was evidence to the effect that the fire alarm was received at the fire station in 17 minutes after the train in question left the Kokomo station. The fire department reached the fire three or four minutes later and then found the west side and northwest part of the house practically burned away. The distance from the northwest corner of the house to the center of appellant's track west was 150 feet and measured on a north-be, as in all other cases, a question for the west line was 51 feet. There was a strong wind from the west and northwest. One of the witnesses heard the train coming very fast, and it blew so rapidly that she got up and walked to the corner of the house and "saw the fire and sparks dazzling around rapidly, and the wind was blowing right toward our house, and the sparks from it was like blazes of fire toward our house." (Our italics.) This witness said she saw sparks, and a good many of them the size of the end of her finger "that lit toward the house"; that she was alarmed as to the safety of the house; that her little daughter called her to see the sparks and fire coming out of the engine; that she saw blazing sparks and cinders fall all through the yard. This display of sparks was in daytime about 2:38 p. m., and the fire alarm was received at the fire station at 2:55 p. m.

There was evidence showing that at the time the house caught on fire there was no fire in any of its stoves or flues, and that there were no houses or fire anywhere in close proximity. Under this evidence, this court cannot say as a matter of law that appellant was not guilty of any negligence, but, on the contrary, such evidence warranted the jury in inferring that the unusual size and quantity of the sparks shown by such evidence could be accounted for only on the theory that appellant either used a defective spark arrester on its locomotive, or that it so negligently operated it that it emitted sparks in unusual size and quantities, and that the sparks so emitted set fire to the building in question. That such evidence was sufficient to warrant the jury in inferring that the building was set on fire by the passing engine has been frequently decided by both the Supreme Court and this court. Toledo, etc., Co. v. Fenstermaker, supra; Pittsburgh, etc., Co. v. Indiana, etc., Co., 154

We cannot say that the facts disclosed by the evidence in this case warrant but a single inference; but, on the contrary, they are of such a character that fair and honest men might differ as to the inference that should be drawn therefrom, and hence that drawn by the jury should be allowed to stand. Judgment affirmed.

(53 Ind. App. 472)

MITCHEL FREE SCHOOL TP. OF MAR-
TIN COUNTY v. BAKER. (No. 7,926.)
(Appellate Court of Indiana, Division No. 2.
May 29, 1913.)

1. SCHOOLS AND SCHOOL DISTRICTS (§ 79*)—
TRUSTEE-AUTHORITY.

The powers of a school township trustee being purely statutory, his acts do not bind his township unless within the scope of his statutory powers; all persons who enter into a conthe extent of his authority. tract with such trustee being bound to know

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 188-191; Dec. Dig. § 79.*]

2. SCHOOLS AND SCHOOL DISTRICTS (§ 144*)— TEACHERS-SALARIES -TOWNSHIP REFORM

Аст.

Township reform act (Acts 1899, c. 105, Burns' Ann. St. 1908, §§ 9590-9602) applies to contracts made by the township trustees with the teachers, although the statute fixes a minimum wage for teachers.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 308-314; Dec. Dig. § 144.*]

3. SCHOOLS AND SCHOOL DISTRICTS (§ 144*)TEACHERS SALARIES -TOWNSHIP REFORM Аст.

Township reform act (Burns' Ann. St 1908, § 9593) provides that the township trus tee shall present a detailed and itemized ac

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

count of his estimated expenditures, and the advisory board shall not have power to appropriate any larger sum, while section 9595 provides for additional appropriations in cases of emergency, but that in no event shall a debt of the township not embraced in the annual estimates be created without such special authority. Held, that a contract between the township trustees and a teacher, entered into without sufficient funds on hand to pay the salary agreed on, and without making provision therefor by estimates, is unenforceable, and the teacher, though having performed his services, can recover only the minimum salary fixed by

the act.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 308-314; Dec. Dig. § 144.*]

ship trustee is purely statutory, and his acts create no binding obligation upon his township unless they are within the scope of his statutory power; and all persons who enter into a contract with such officer are bound to know the extent of his authority, and that beyond the limit of such authority he cannot bind the township, either civil or school. Indiana Trust Co. v. Jefferson Tp., 37 Ind. App. 424, 427, 77 N. E. 63; Clinton School Tp. v. Lebanon, etc., 18 Ind. App. 42,

45, 47 N. E. 349.

[2, 3] The statute with reference to the employment of teachers by a township trustee does not differ in any essential respect

Appeal from Circuit Court, Martin County; from statutes relating to other contracts of Hileary Q. Houghton, Judge.

Action by Tyrey E. Baker against the Mitchel Free School Township of Martin | County, Ind. From a judgment sustaining a demurrer to the answer, defendant appeals. Reversed and remanded, with directions. Frank E. Gilkison, of Shoals, for appellant. F. Gwin, of Shoals, for appellee.

township trustees, and the township reform act (sections 9590-9602, Burns 1908; Acts 1899, p. 150, c. 105) applies to contracts made by the township trustees with their teachers, as well as to all other contracts made in behalf of the township. It is held, however, in the case of Rutherford School Township v. Craney, supra, that the minimum wage which must be paid the teacher and the minimum school term are matters definitely

IBACH, J. There is but one question pre-fixed by statute, which cannot be reduced sented by this appeal in addition to those decided in the case of Rutherford School Township v. Craney, decided by this court on October 1, 1912, and reported in 99 N. E.

485.

Appellee by this action seeks to recover the difference between the contract price for teaching one of the township schools and the minimum wage declared by statute, which latter amount it appears was paid him.

To the complaint containing these facts appellant filed answer, in which it is averred, in substance, that the contract sued on was for a sum of money in excess of the funds in the hands of the trustee, and in excess of the funds obtainable from the various levies made for school purposes, and that the wages per diem set out in the written contract between the trustee and appellee had not been authorized and was in excess of the amount allowed by law for the minimum wage for the teachers of township schools, and that under the regulations made by the Auditor of State it was impossible for the school township to receive assistance from the state common school fund to pay his per diem in excess of the minimum, which in the case of appellee was $2.79 4/20 per day, all of which facts the plaintiff knew at the time of entering into said contract, and continuously during the performance thereof. A demurrer filed to this paragraph of answer was sustained, and this action of the trial court is one of the errors assigned for reversal. Consequently the question which we are called upon to determine is whether or not appellant's answer shows the contract sued on was one within the statutory power of the trustee to make.

by a contract with the trustee, and to this extent the Legislature has made the contract for the parties. But as to the excess of pay over these minimum requirements all such contracts must be held to fall within the provisions of the township reform act. By that act it is provided: "The trustee

shall *

present a detailed and itemized statement in writing of his estimated expenditures for which appropriations are asked, specifying the number of teachers necessarily employed, their salaries respectively. The advisory board shall * to appropriate for any purpose a sum not greater than that estimatSection 9593, ed in the items therefor." Burns 1908. "Upon a special call of the said board, may, township trustee

have power

determine whether an emergency exists for the expenditure of any sums not included in the existing estimates and levy. In the event that such an emergency is found to exist said board may authorize the trustee to borrow a sum of money sufficient to meet such emergency.

*

* *

In no event shall a debt of the township not embraced in the annual estimates fixed and allowed be created without such special authority, and any payment of such unauthorized debt from the public funds shall be recoverable upon the bond of the trustee. Section 9595, Burns 1908. Since it is made to appear that the township trustee entered into the contract in suit without sufficient funds on hand at the time the contract was made, and without making provision therefor in the manner provided by law, such contract was without [1] The power and authority of a town- the authority of the trustee to make, except *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 494-513; Dec. Dig. § 271.*] 5. MECHANICS' LIENS (§ 290*)-ENFORCEMENT FINDINGS OF FACT OWNERSHIP OF

PROPERTY.

In an action to foreclose a mechanic's lien, special findings of the court must find that the defendants were the owners of the property, which is a fact essential to recovery by the lien claimant.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 591-597; Dec. Dig. § 290.*] 6. TRIAL (§ 397*)-FINDINGS OF FACT-FAILURE TO FIND MATERIAL FACT.

as to that part thereof which the statute | ing done by the claimant was "in and upon the commands. The township reform law was building" is a sufficient averment that it was enacted to prevent unwise and unnecessary "part of" such building. expenditures of the public funds, and the Legislature in its wisdom has seen fit to provide for the election of advisory boards in the various townships of the state, who are alone authorized by law to allow the contracting of debts against such townships, and then only in the manner allowed by statute. The answer not only shows the executing of the contract at a time when the trustee did not have sufficient funds on hand to meet it, but that sufficient funds were not available, from all sources provided by law from which school funds are derived, to continue the school term beyond the period of 120 days, and then only by paying the minimum wage to each teacher, and that the contract sued on was unauthorized and wholly without the power of the trustee to execute. It seems therefore that this paragraph of answer stated a good defense to plaintiff's complaint, wherein wages in excess of the statutory minimum wage were sought to be recovered, and the demurrer thereto should have been overruled.

Judgment reversed, with directions to overrule appellee's demurrer to appellant's answer, and for further proceedings not inconsistent with this opinion.

(53 Ind. App. 476)

JUDAH et al. v. F. H. CHEYNE ELEC-
TRIC CO. (No. 8,006.)

Where special findings are made, the failof a finding against the party upon whom rests ure to find any material fact is the equivalent the burden of proving that fact.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 940-945; Dec. Dig. § 397.*] 7. APPEAL AND ERROR (§ 931*)-FINDINGS OF FACT-ULTIMATE FACTS.

Where the primary facts found lead to but one conclusion, or are of such character that they necessitate the inference of an ultimate fact, the ultimate fact will be treated on appeal as found.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762–3771; Dec. Dig. § 931.*]

8. TRIAL ($ 404*)-FINDINGS OF FACT-PRE

SUMPTIONS.

If a special finding, when read as a whole, can be said to sustain the conclusions of law stated thereon, it is sufficient, since the presumptions are in favor of the finding rather than against it.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 957-962; Dec. Dig. § 404.*]

(Appellate Court of Indiana, Division No. 1. 9. MECHANICS' LIENS (§ 290*)-ENFORCEMENT

May 29, 1913.)

1. MECHANICS' LIENS (§ 271*)-RELIANCE ON CREDIT OF BUILDING-COMPLAINT TO FORE

CLOSE.

In an action to foreclose a mechanic's lien, the complaint must allege that the materials were furnished for the building against which the lien was claimed; it not being sufficient that they were used in the building.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 494-513; Dec. Dig. § 271.*] 2. MECHANICS' LIENS (§ 271*)-COMPLAINT SUFFICIENCY.

A complaint to foreclose a mechanic's lien, which alleges that materials and labor were furnished at the request of the owners of the property in the repair of certain electrical work in and upon the buildings described, sufficiently alleges that the labor and materials were furnished for the building.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 494-513; Dec. Dig. § 271.*] 3. PLEADING (§ 34*) - CONSTRUCTION - PRESUMPTIONS IN AID OF PLEADING.

Where the facts averred in a pleading admit of but one inference, appellate courts will indulge such inference in aid of the pleading. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 52, 66-74; Dec. Dig. § 34.*] 4. MECHANICS' LIENS (§ 271*)-COMPLAINT SUFFICIENCY.

-FINDINGS OF FACT-SUFFICIENCY.

Where the court found that the defendants in an action to foreclose a mechanic's lien were trustees and devisees of the property under a will, that one of them, acting on behalf of the "owners" of the property, contracted for the materials which the plaintiff furnished the defendants, that the defendants accepted the repairs, paid a sum on account, and tendered the balance they admitted to be due, and that there remains a balance due to the plaintiff from the inference that can be drawn from such findings defendants on account of the repairs, the only is that the defendants were the owners of the property, and they amount to a sufficient finding of such ownership, even though it is not expressly stated.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 591-597; Dec. Dig. § 290.*] 10. MECHANICS' LIENS ($ 290*) ENFORCEMENT- FINDINGS OF FACT-INCONSISTENT FINDINGS.

In an action to foreclose a mechanic's lien, where the court found that the work was completed on July 2d and that the claim was filed on September 14th, "within 60 days from the completion of the work," and the evidence is not in the record, but the exhibit filed with the complaint shows items for material and labor furnished between July 2d and July 22d, the presumption in favor of the proceedings below authorizes a conclusion that the finding below as to the date of completion was simply an error in date.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 591-597; Dec. Dig. § 290.*]

In an action to foreclose a mechanic's lien, an averment that the electrical work and wirFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes