The Jeffersonville Railroad Company v. Hendricks' Administrator.

carried her beyond her destination, the company would have been liable in damages. But the fact that the train was passing the station without stopping, could not justify her in attempting to get off by leaping from it. It is the duty of those having charge of the train, in such cases, to stop it, to enable passengers to leave it safely, and it is carelessness in passengers to attempt to leave the train whilst it is in motion. But if the train should be stopped, and when the passenger is in the act of getting off, and without allowing a reasonable time for that purpose, should be suddenly started again, whereby an injury occurs to the passenger, the company would be liable.

The questions of fact to be determined by the jury in such cases, are, 1, was the defendant guilty of negligence? and if so, 2, was the injury complained of caused by such negligence alone, or did the plaintiff's own negligence directly contribute to it?

Exceptions were taken to the charge of the court to the jury, and also to the refusal of the court to give certain instructions asked by the defendant. We have examined the instructions given by the court, as well as those asked by the defendant, which the court refused to give. We think the former contained a correct and very full enunciation of the law of the case as presented by the evidence, and was not unfavorable to the defendant, and that the instructions asked by the defendant, which the court refused to give, so far as they were proper, were substantially given in the general charge of the court.

Another point made by the appellant is, that the Circuit Court erred in overruling the defendant's motion for a new trial, for the reason that the finding of the jury was not sustained by the evidence. The evidence is all in the record, and a careful examination of it has not clearly satisfied us that it sustains the finding. No witness testified to having seen the deceased leave the train at Columbus. Even the fact that she was on the train to

Miller v. Beal.

which the evidence was directed was left in great doubt, but if she was, still there was no evidence as to how the casualty happened. She was found on the track at the station, dead, about an hour after the train passed, and had evidently been run over by the cars; but whether she fell, or was thrown from the train, or had safely landed from it on the platform, and afterwards, in passing along the platform, by a mis-step, or other mishap, fell and was thrown under the cars as they were passing away, is left entirely to conjecture. But as the case must be reversed for reasons already given, and as the evidence upon another trial may present the case in an entirely different light, we do not regard it necessary at this time to pass on the question, or refer more particularly to the evidence.

The judgment is reversed with costs, and the cause remanded with instruction that the court below carry the demurrer to the answer back, and sustain it to the complaint, with leave to both parties to amend their pleadings. S. Stansifer and C. E. Walker, for appellant. R. Hill and J. M. Rogers, for appellee.

MILLER V. BEAL.

AMENDMENT. Where a case has been appealed from a justice of the peace to the Circuit Court it is not error to allow the plaintiff in the latter court to amend his complaint by increasing the amount of his demand, provided it is not increased to an amount beyond the jurisdiction of the justice. SAME.-COSTS.-The court may, in such case, make such order as to costs as may be just.

ATTORNEY'S FEES.-A demand by an attorney upon his client for a certain sum as a compensation for services rendered is only a proposition to

Miller v. Beal.

receive that amount for the debt, and if payment is refused the recovery cannot be limited to the amount demanded, if the services are shown to be of greater value.

APPEAL from the Marion Circuit Court.

RAY, J.-This was an action for the value of services rendered as attorney, and was commenced before a justice. and appealed by the defendant below to the Circuit Court, where judgment was obtained against the appellant for an increased amount.

It is urged that the Circuit Court erred in permitting the appellee, without notice to the appellant, to amend his complaint by enlarging his claim. No exception was taken to this action of. the court, nor is it assigned for error in this court. But we are not inclined to regard it as error to permit such an amendment, so long as the jurisdiction of the justice was not exceeded. The question of costs is within the discretion of the court, and if any prejudice results to the other party, upon a proper showing, the court can make such order in regard to the continuance of the cause as may seem just.

The remaining question is raised upon the evidence given on the trial. It is insisted that as the appellee demanded from the appellant a certain sum for the services after they were performed, that demand furnished conclusive evidence of the value of the services, as against the appellee, even after a refusal to pay the sum demanded, and that on the trial the appellee should not have been permitted to prove a greater value, and that the finding of the jury in accordance with such evidence was error.

In our judgment, the demand upon the appellant for payment of a sum named could only be regarded as a proposition to receive that amount in discharge of the debt, and as furnishing evidence to the jury of the value placed by the appellee upon his own services. Payment of the sum demanded would have been an acceptance of the proposition, and, no amount having been fixed by previous contract, would have been conclusive upon the parties. In

Clark, Administrator of Romine, v. Butt.

the present case there was evidence from which the jury might find that the proposition was not accepted, and that the services were of greater value than the sum demanded. The judgment is affirmed, with one per cent. damages and costs.

H. C. Newcomb and J. Tarkington, for appellant.

J. L. Ketcham and J. A. Beal, for appellee.

LEASE.

CLARK, Administrator of RoMINE, v. BUTT.

COVENANT FOR POSSESSION.-A leased to B a tract of land for the term of three years, the term to commence at a future day. The lease stipu lated that B should “have full and peaceable possession for said term of three years." A died before the commencement of the term, and his administrator, who was also the guardian of his minor heirs, as such guardian, leased the premises to another. Suit by B against the estate of A

for damages.

Held, that the provision of the lease that B should have peaceable possession for the full term, was a covenant on the part of A to deliver the possession on the day the term was to begin.

Held, also, that the leasing of the premises to another was such a breach of the covenant as entitled B to his action against the estate.

APPEAL from the Warren Common Pleas.

GREGORY, C. J.-Butt sued the administrator of Romine on a covenant of his intestate, contained in a written lease executed by the deceased in her lifetime, on the 1st of July, 1861, for the possession for the term of three years of the leasehold premises, commencing the 1st of March, 1862. The complaint avers that Butt was hindered and prevented from getting possession of the rented premises on the day last named; that the administrator rented the premises to

Clark, Administrator of Romine, v. Butt.

Lee, and put him in possession, against the will of the plaintiff, by which he was prevented from raising a crop on the premises, and enjoying the same for three years, to the damage, &c.

The defendant answered, 1. The general denial. 2. That he, as guardian of Sarah E. Romine, John Romine and Sylvester Romine, minor children and heirs at law of Romine, deceased, did prevent the plaintiff from taking possession of and occupying the premises mentioned in the complaint, and as guardian of said minor heirs did rent the same to Lee, and not as administrator of the estate of Romine, deceased. A demurrer was sustained to the second paragraph of the answer, and this is assigned for error.

The court refused to instruct the jury, as asked by the appellant, that if they believed from the evidence that Clark, as administrator, did not take possession of the leased premises, and did not, as administrator, hinder or prevent Butt from taking possession under the lease, that then they should find for the estate. This is assigned for error. The court instructed the jury, that it is the duty of the administrator to carry out the personal contracts of the decedent; that it was the administrator's duty to carry out the written lease in this case; and because the guardian failed or refused to carry out the written lease, did not exonerate the administrator from his duty to carry it out. The defendant objected and excepted to the giving of this instruction.

All the questions presented in the case in judgment turn upon the liability of the estate of the intestate to answer for the alleged breach of the covenant for possession contained in the lease. If this is a personal covenant for the alleged breach of which the administrator may be sued, then the second paragraph of the answer is bad. The court rightly refused the instructions asked, and committed no error in giving the instructions objected to. Romine demised to Butt the leasehold premises "for the term of three years, to commence on the 1st day of March, 1862, and