Stingley v. Owen-186 Ind. 133.

otherwise provided in this act any person aggrieved by any decision of the board of commissioners of any county, in any proceeding in relation to highways, may appeal therefrom within thirty days thereafter to the circuit court of such county, by filing a bond," etc. It will be noted that this section says that appeals may be taken under this section "except as otherwise provided in this act." Section 3 of the act of 1915, supra, was originally §70 of the gravel road act of 1905, supra, and the legislature evidently intended that when a road was to be constructed of less than three miles in length that as little delay as possible should be allowed, and hence provided that appeals might be taken in those cases, if taken within ten days.

The same provision was carried into the original amendment of $70, by §1 of the act approved March 8, 1909, Acts 1909 p. 353, and also in the amendment of the amendatory section in 1913, §2, Acts 1913 p. 418. In the original act and in all subsequent legislation amendatory of that act the same provision as to appeal is carried forward. We are of the opinion that $70 of the original act and the acts amendatory thereof govern the appeal in this case, and the bond not having been filed within ten days from the final order of the board establishing the road a later filing would be too late to secure an appeal.

Appellants refiled their bond with the auditor, June 29, 1915, the day following the letting of the contract for the building of said road. No issue was pre2. sented to the board involving the letting of the

contract for the building of the road; hence no question was presented to the circuit court for trial. Sanasack v. Ader (1907), 168 Ind. 559, 562, 80 N. E. 151; Taylor v. Strayer (1906), 167 Ind. 23, 31, 78 N. E. 236, 119 Am. St. 469; Atkinson v. Disher (1912), 177 Ind. 665, 679, 98 N. E. 807; Davis v. Hert (1910), 46

Pearcy v. Floyd, etc., Lumber Co.-186 Ind. 136.

Ind. App. 242, 247, 90 N. E. 634. It must follow that the trial court did not err in dismissing the appeal and the judgment is affirmed.

NOTE. Reported in 115 N. E. 88.

PEARCY V. FLOYD COUNTY LUMBER COMPANY.

[No. 22,960. Filed February 20, 1917.]

1. TRIAL.—Instructions.—Consideration of Evidence.-In determining any material question in issue the jury has the right to consider all of the evidence pertinent thereto, whether introduced by the party having the burden of such issue or by his opponent, and an instruction which limits the jury to a consideration of the evidence introduced by the party having the burden of the issue to the exclusion of other evidence is erroneous. p. 137.

2. APPEAL.-Review.-Instructions.-Harmless

Error.-In an

employe's action for injuries received while operating a saw, liability being predicated on the failure to have the saw properly guarded in compliance with §8029 Burns 1914, Acts 1899 p. 231, 234, where there was nothing contained in defendant's evidence tending to support plaintiff on the issue whether the saw could have been guarded without destroying its sufficiency for the purpose for which it was used at the time of the injury, error in an instruction excluding defendant's evidence from the consideration of the jury was harmless. p. 138.

From Washington Circuit Court; Wiliam H. Paynter, Judge.

Action by Noah Pearcy against the Floyd County Lumber Company. From a judgment for defendant, the plaintiff appeals. Affirmed.

H. W. Phipps and Mitchell & Mitchell, for appellants. John T. Suggs, W. W. Hottel, Charles L. Jewett and Henry E. Jewett, for appellee.

LAIRY, C. J.-This was an action by appellant to recover damages for an injury to the fingers of his left hand which came in contact with an unguarded saw in

Pearcy v. Floyd, etc., Lumber Co.-186 Ind. 136.

appellee's shop. The issues formed by an amended paragraph of complaint and a general denial were tried by a jury and a verdict was returned in favor of appellee and denying a recovery. Appellant's motion for a new trial was overruled and this ruling is assigned as error. On appeal appellant asks that the judgment be reversed upon the proposition that the jury was not correctly instructed in certain instances.

It is appellant's theory that he was injured by reason of the negligence of appellee in failing to comply with §8029 Burns 1914, Acts 1899 p. 231, 234, which provides for the guarding of certain machinery. It is practically conceded that the saw in question was not guarded; that appellant was in the employ of appellee at the time he was injured; and that appellant was injured while operating the unguarded saw. Appellee contended, however, that the saw could not have been guarded without interfering with its efficient use, and that, therefore, a fact indispensable to appellant's right of action did not exist.

Appellant asserts that the trial court committed error in giving instructions numbered one and two requested by appellee, for the reason, as claimed, that such instructions confine the jury to a consideration of the evidence introduced by appellant in determining whether he had proved the material allegations of his complaint, and excluded from its consideration all evidence introduced by the defendant which might tend to sustain the material facts upon which appellant relied for a recovery.

In determining any material question in issue 1. the jury has a right to consider all of the evidence introduced at the trial which bears upon such question, whether introduced by the party having the burden of such issue or by his opponent; and an instruction which limits the jury to a consideration of the evidence introduced by the party having the burden of

Pearcy v. Floyd, etc., Lumber Co.-186 Ind. 136.

the issue to the exclusion of other evidence in the case has been held to be erroneous. Indianapolis St. R. Co. v. Taylor (1901), 158 Ind. 274, 63 N. E. 456; M. S. Huey Co. v. Johnston (1904), 164 Ind. 489, 73 N. E. 996. In this case, however, the instructions under consideration could not have harmed appellant, even though

it be conceded that they were open to the ob2. jections urged against them. The negligence on which appellant relied for a recovery was the failure of appellee to guard the saw which appellant was using at the time he received his injury. By answers to interrogatories the jury found that appellant was using the saw at the time he was injured for the purpose of rabbetting a piece of timber, and that it was impossible to guard the saw when being used for that purpose without practically destroying its usefulness and efficiency for such purpose. It thus appears that the jury decided this material issue of fact adversely to appellant. If the instructions under consideration influenced this decision by excluding from the consideration of the jury any pertinent evidence favorable to appellant, they were prejudicial, but if they did not do so, they were harmless. The evidence introduced by appellee has been carefully examined, and nothing can be found therein which lends the least support to appellant on the material issue involved. A consideration of the evidence introduced by appellee could not have produced a different result, and therefore if the consideration of such evidence was excluded from the jury by the instructions questioned, the error was harmless.

As before stated, the answers to interrogatories show that the facts upon which appellant based his right to recover did not exist. It thus appearing that appellant had no right of action against appellee, no instructions, however erroneous, could constitute reversible

Howe v. State-186 Ind. 139.

error unless they were such as might have influenced the answers to the interrogatories. The instructions which might have affected such answers having been discussed, the others need not be considered. Judgment

affirmed.

NOTE.-Reported in 115 N. E. 90. See under (1) 17 Cyc 799.

HOWE v. STATE OF INDIANA.

[No. 23,162. Filed February 21, 1917.]

1. CRIMINAL LAW.-Evidence.-Acts and Declarations of Conspirators.-Admissibility.—Before the acts or declarations of one conspirator are admissible in evidence against a coconspirator, there must be some evidence, either direct or circumstantial, of a conspiracy. p. 143.

2. CRIMINAL LAW.-Evidence.-Conspiracy.-Threats of Conspirators.-Admissibility.—In a prosecution for murder, evidence that two murdered men were friends, and that they, with others, went to defendant's place of business on the evening of the homicide, is insufficient to establish conspiracy, and threats alleged to have been made against defendant by one of the dead men are inadmissible in evidence on a trial for the murder of the other, since acts and declarations of conspirators are incompetent unless a prima facie case of conspiracy is shown. p. 143.

3. HOMICIDE.-Evidence.-Plea of Self-Defense.-Threats of Conspirators.-Character of Decedent.-Admissibility.—In a prosecution for murder, where the killing was justified on the ground of self-defense, but there was no evidence of an overt act on the part of the deceased or his companion, who was killed at the same time, to inflict injury upon either the defendant or his property, or any conduct from which any inference could reasonably be drawn that they intended the immediate perpetration of an act imminently dangerous to the life of the accused, evidence of threats against the defendant by one of the dead men and his general reputation for peace and quietude was inadmissible on the trial of the accused for the murder of the other victim of the homicide. p. 144. From Clay Circuit Court; John M. Rawley, Judge. Prosecution by the State of Indiana against James