248, 39 Am. Rep. 135; Evansville v. Decker, 84 Ind. 325, 328, 43. Am. Rep. 86; North Vernon v. Voegler, 89 Ind. 77; Crawfordsville v. Bond, 96 Ind. 236, 242; Davis v. Crawfordsville, 119 Ind. 1, 21 N. E. Rep. 440, 12 Am. St. Rep. 361; Patoka Tp. v. Hopkins, 131 Ind. 142, 30 N. E. Rep. 896, 31 Am. St. Rep. 417; Mitchell v. Bain, 142 Ind. 604, 618, 42 N. E. Rep. 230. For an instructive case, where many decisions are reviewed by Cooley, J., see Ashley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552.

There is evidence to the effect that, before Campbell street was improved, the principal part of the storm water complained of, from eight to ten acres lying east of Campbell street, meandered along natural depressions to the south and west, and crossed Campbell street through two culverts, about thirty and forty rods, respectively, north of Pearl street, which former road or street officers had deemed necessary to construct. In making the improvement, these culverts were removed, the watercourses filled with earth to the fixed grade, and a side ditch constructed on the east side of the street sufficient to carry all the surface water discharged into it from the east between the Grand Trunk and Pearl street, a distance of about eighty rods, and near the latter point permitted to flow out upon abutting property and in upon the plaintiff's lot, which after the improvement was completed lay lower than the street, without making any provision for its escape. No one will question the right of a city to divert surface water from natural courses in carrying out a system of municipal drainage, but when it collects such water in large quantity in an artificial channel, thereby creating a necessity for a new and larger outlet, it is its plain duty to provide it. The duty to supply an adequate outlet is inseparable from the right to collect the water. To permit the assembled waters to descend in a body through such artificial channel to the premises of abutters made lower than the street by the improvement is as much an invasion of private right, as much a trespass upon private property, as would be the wasting of earth and stone from the cuttings upon the adjacent lots. We think, therefore, that under the complaint and evidence the jury had abundant grounds for finding that the improvement of Campbell street was unskilfully and negligently accomplished, in that it caused the assembling of a large and an unusual amount of storm water near the intersection of Pearl street, and provided no means for it to get away. Both the complaint and evidence are sufficient.

3. Appellant's fourth paragraph of answer was to the effect that the damages for which the plaintiff sues were caused by an un

was the act of God.

precedented rainstorm and flood, which, in contemplation of law, The sustaining of a demurrer to the answer is assigned as error. What has been said above with respect to the duty of municipalities to provide means of escape for surface water in the improvement of its streets does not apply to unprecedented rainfalls; that is, to such downpours or floods as may be known to have occurred, but are so unusual and extraordinary as that prudent persons do not think of attempting to guard against them. Skilful construction of streets in this respect seems to mean that such side ditches, culverts, and outlets must be provided for surface water collected and diverted from natural ways as are sufficient to carry the waters that may, from experience and the previous history of the vicinity, be reasonably expected to fall, and which are not the result of a cloudburst or other rainstorm of extraordinary character. City of Madison v. Ross, 3 Ind. 236, 54 Am. Dec. 481; City of Evansville v. Decker, 84 Ind. 325, 328, 43 Am. Rep. 86; Los Angeles Cemetery Ass'n v. City, 103 Cal. 461, 37 Pac. Rep. 375; Allen v. City, 52 Wis. 430, 9 N. W. Rep. 284, 38 Am. Rep. 748; City v. Adams, 72 Ill. App. 662; Farnham, Waters, etc., sec. 182. Therefore, if the plaintiff's damages were caused by water cast upon her property by an unprecedented and extraordinary rainstorm or freshet, the city was not liable, and the fourth paragraph of answer stated a good defense. The complaint, however, rests upon the theory that the surface water from ordinary rains was collected, diverted, carried to, and, for want of an outlet, cast upon, and left on, the plaintiff's lot, to her injury. If her damage did not result as alleged in the complaint, the city's answer of general denial put in issue every fact that went to disprove it. Hence it is that all the evidence that would have been admissible under the fourth paragraph of answer was admissible under the general denial, and the error in sustaining appellee's demurrer thereto was harmless.

But this does not settle the question. On the trial at the proper time, and while the city's witness was testifying in chief, appellant, upon appellee's objection, was denied the right to prove, as it offered to do, and was entitled to do, that the damages sued for were caused by water from an unprecedented rain overflowing the plaintiff's premises. This was prejudicial error. The case is not one of contract, where the court may sometimes look into the evidence to determine whether the complaining party has suffered from an exclusion of his evidence; but it sounds in tort, and in all such cases the damages are unliquidated, and the amount left to the jury, to be ascertained by them, under the direction of the court, from a consideration of all the evidence.

It is plain that we cannot say that the verdict would have been the same if the court had permitted appellant to prove that the rain which injured the appellee was of a character for which the city was not liable. For this error, the cause must be reversed.

The judgment is reversed, and cause remanded, with instructions to grant appellant a new trial.

PER CURIAM. Upon appellant's petition, and proper showing that appellee, Wilhelmina Spaeth, departed this life on or about November 11, 1904, being after this appeal and before judgment of reversal herein, and the death of said Wilhelmina Spaeth now appearing to this court for the first time, it is now ordered that the judgment of reversal rendered in this cause on December 12, 1905, be set aside, and the same re-entered as of the date of submission of said cause, to wit, February 13, 1904.

PITTSBURGH, C. C. & ST. LOUIS R. CO. v.
NICHOLAS.

Supreme Court, Indiana, January, 1906.

RAILROADS - MASTER AND SERVANT - FELLOW-SERVANT — CONDUCTOR OF TRAIN GIVING SIGNAL THAT CAUSED INJURY TO BRAKEMAN. — Where the complaint alleged that plaintiff was a brakeman in defendant's yards engaged in making up trains and was directed by the conductor, whose orders he was bound to obey, to go upon a car to set the hand brakes after the car had been cut loose from the rest of the train, and the conductor failed to have the car cut loose from said train and negligently gave the signal to the engineer to stop the engine suddenly, whereby the plaintiff was thrown from the top of the car to the track and was severely injured, sufficiently states that the conductor owed a duty to plaintiff to cut the car from the train or to have it done before giving the signal for a sudden stoppage of the engine, and it was not necessary to allege that the conductor knew of plaintiff's perilous position.

RISK OF EMPLOYMENT. - The assumption of the ordinary risks of the plaintiff's employment did not include the unexpected and unknown negligence of a superior servant while exacting and receiving implicit obedience to a specific order.

APPEAL from Circuit Court, Henry County.

Action by Howard E. Nicholas against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of

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the Appellate Court (73 N. E. Rep. 195, 74 N. E. Rep. 626), affirming a judgment for plaintiff, defendant appeals. Affirmed.

JNO. L. RUPE and L. P. NEWBY, for appellant.

W. J. BECKETT and ELLIOTT, ELLIOTT & LITTLETON, for appellee. 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 refrigerator 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 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 the 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 com

plaint 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. Rep. 927; Terre Haute, etc., R. Co. v. Rittenhouse, 28 Ind. App. 633, 62 N. E. Rep. 295; Thacker v. Chicago, etc., R. Co., 159 Ind. 82, 64 N. E. Rep. 605, 59 L. R. A. 792; Republic, etc., Co. v. Berkes, 162 Ind. 517, 70 N. E. Rep. 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 night-time, about three 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