abolished, since the statute there evidently confers the power of alienation, and also the power "to substitute a deed signed and witnessed for all common-law conveyances whatsoever": Rowland v. Warren, 10 Or. 129. The court in that case construes the statute de donis as converting the fee-simple conditional into a fee-tail by taking away the tenant's power of alienation. Substantially the same ruling obtains in New Hampshire, where it is held that, by implication, the statute of 1789 relating to devises and descents repeals the statute de donis, the argument being that "if our statutes have overturned the two great objects of the statute de donis to secure to the eldest sons in succession of the grantee an inalienable interest in the property, and to the grantor and his heirs the reversion on failure of the heirs of the body of the grantee, we may regard the statute as repealed, and with it all the doctrines of the English law on the subject of estates-tail": Jewell v. Warner, 35 N. H. 176; and the court concludes, after exhaustively reviewing the law, as follows: "Not one object of the statute de donis remained, no charac、 teristic of an estate-tail continued to exist, and no other conclusion can be drawn than that the statute de donis was impliedly repealed and estates-ta finally abolished" in that state after the passage of the act above referred to Id. 188.

In some of the states the effect of such provision as would, at the common law, amount to an estate-tail creates in the donee a life estate; there passes, however, at his death, to the one to whom it would pass at common law, an estate in fee-simple absolute: See Statutes of Arkansas, Colorado, Illinois, Missouri, and Vermont. It has been held that a quitclaim deed from a con. tingent remainderman to a tenant in tail in possession enlarges the latter's estate to fee-simple: Smith v. Pendell, 19 Conn. 107; 48 Am. Dec. 146; and under the rule of interpretation that favors heirs in doubtful cases, the Pennsylvania courts incline in favor of an estate-tail where it descends to all the children equally, as such case would be in exact accordance with the laws of lineal descent in that state: Price v. Taylor, 28 Pa. St. 95; 70 Am. Dec. 105; but it was held in the same case that the statute de donis was repealed in that state by the act of 1855, the purpose of which was to convert words of entailment in estates thereafter created into words of general inheritance in fee; and in the later case of Kay v. Scates, 37 Pa. St. 31, 78 Am. Dec. 399, it was also decided that an estate in fee-tail was, by the act of 1855, converted into an estate in fee-simple. So in Kentucky, words which would under a devise to a woman create in her an estate-tail at the common law, only confers on her an estate for life: Carr v. Estill, 16 B. Mon. 309; 63 Am. Dec. 548. And in Rhode Island, a statute limiting an estate-tail to "children of the first devisee" is not construed to limit the estate to the children of the first devisee in tail: Lippitt v. Hustin, 8 R. I. 415; 94 Am. Dec. 115. In Orndoff v. Turman, 2 Leigh, 200, 21 Am. Dec. 608, it is said that all estates-tail were docked by the act of 1776; and that also an alienation in fee by a tenant in tail executed with general warranty in 1769, the tenant dying in 1816, conveys to the alienee a fee-simple by reason of the acts of 1769 and 1785 aboling estates-tail: Id.

How Barred. A means of alienation was, subsequent to the statute de donis, provided in England by other statutes, and an estate might be alienated by fines and common recoveries. However, it is not believed that these modes now exist in any of the states: 1 Washburn on Real Property, 83, 84, 97, 98; Tiedeman on Real Property, ed. 1884, secs. 45, 49, 52; Williams on Real Property, 45 et seq.; 2 Bla. Com. 119; Richmond v. Lippincott, 29 N. J. L. 44. The estate, if it exists, may be conveyed in Massachusetts, Rhode

Island, Pennsylvania, Maryland, and Delaware, for which see statutes of those states; see also Dewitt v. Eldred, 4 Watts & S. 414; Taylor v. Taylor 63 Pa. St. 481; 3 Am. Rep. 565; Leyle v. Edwards, 7 Serg. & R. 322.

ESTATES-TAIL ARE FORBIDDEN IN KENTUCKY, and estates which at former times would have been deemed estates-tail are now held to be estates in fee-simple; and under a deed worded thus, "I, John W., have bargained and sold and do transfer and convey to Jane W. (wife of Isaac W.), and to the heirs of her body by the said Isaac W., a certain tract of land,, . . . to have and to hold the same to said Jane W. and the heirs of her body by the said Isaac W.," it was held that the children of Jane and Isaac W. were as certainly identified as if they had been named, and that they took by the conveyance a present interest with their mother: Brann v. Elzey, 83 Ky. 440.

IN PENNSYLVANia, under a DeVISE worded "unto said sister and at her death to her child, children, or other lineal descendants," it was held that the words "other lineal descendants" so qualify the previous words “child, children," as to make them words of limitation, and not of purchase, and the estate of first taker is an estate-tail: Mason v. Ammon, 117 Pa. St. 127.

LOUISVILLE, NEW ALBANY, AND CHICAGO RAILWAY COMPANY V. WRIGHT.

[115 INDIANA, 878.]

NEGLIGENCE - LOW BRIDGES. EMPLOYER OF RAILROAD COMPANY HAS RIGHT TO ASSUME that it has constructed and maintained its roadway and bridges in such a manner and condition that, as a brakeman upon its trains, he can perform his duties with reasonable safety, and that if there is any such danger to be encountered in the service as a low bridge, he will be warned of it.

IT IS THE DUTY OF MASTER TO INFORM SERVANT OF INCREASED DANGER AND HAZARD created by him in the change of machinery or premises, unless the servant has notice, or the change and increased danger are so apparent that he ought to take notice.

MASTER SHOULD INFORM SERVANT WHEN HIRING HIM WHERE THERE ARI

DANGERS AND HAZARDS known to the former, or of which he ought to have knowledge by the use of ordinary care, and which are not ordi. narily and usually incident to the business, unless the danger is so apparent that the servant will be bound to take notice of it. RAILROAD BRAKEMAN ASSUMES RISKS ORDINARILY AND PPOPERLY INCI

DENT TO SUCH SERVICE, but he does not assume the risk of unusual dangers of which he has no knowledge, or of which he is not bound to take notice.

IT IS NEGLIGENCE IN RAILROAD COMPANY TO CONSTRUCT AND MAINTAIN ▲ BRIDGE SO Low as not to afford sufficient space to allow brakeman to walk or stand without injury upon freight-cars in the discharge of his duty in the management of trains passing under it; and where the brakeman has no knowledge of the danger, and is injured by such bridge while acting in the line of his duty, the company is liable.

BILL OF EXCEPTIONS is in record, notwithstanding the rendition of the judg. ment and the approval of an appeal bond intervened between the over ruling of a motion for a new trial and the giving of time within which to file such bill.

EVIDENCE THAT OTHER RAILWAYS MAINTAINED BRIDGES SIMILAR TO THAT BY WHICH PLAINTIFF WAS INJURED is not admissible.

COMPROMISE, OFfer of, Contained in a LetTER IS NOT ADMISSIBLE IN EVIDENCE; nor are admissions in such letter competent when not made as independent facts, simply because they are facts.

EVIDENCE. PHYSICIAN who has practiced medicine and surgery for more than twenty years, and who had attended plaintiff professionally for some two months after his injury, may, after stating in detail his condition and the character and condition of his wounds at the time he attended him, give his opinion as to the probable results of the plain. tiff's injuries; and a hypothetical question involving the facts stated by such physician may properly be propounded to another physician. EVIDENCE. FOR THE PURPOSE OF SHOWING NOTICE TO RAILROAD COMPANY THAT LOW BRIDGE WAS DANGEROUS, it is competent, in action for damages for injury caused thereby, to show that on prior occasions other persons on the top of moving trains were injured thereby, and that some of them died in consequence.

PRACTICE. TO BRING INSTRUCTIONS INTO THE RECORD without a bill of exceptions, the Indiana statute imperatively requires that they shall be signed by the judge and filed. That they must be thus filed is a rule of practice established by the legislature, which the supreme court cannot change: R. S. 1881, sec. 533, clause 6. INSTRUCTIONS.—It is unnecessary to embody all the law of the case in one instruction; and where a rule of law applicable to the case is given in one instruction, it is not necessary to repeat it in another; if an instruction is not erroneous as to the law, and is not full enough, the party who thinks it faulty should submit additional instructions. INSTRUCTIONS. -All instructions given must be considered together, and if, so considered, they correctly and intelligibly state the law, and are not confusing to the jury, the judgment will not be reversed because of in. accuracy of some particular instruction.

ALTHOUGH INSTRUCTION IS ERRONEOUS, yet if it appear from the finding of the jury that it was a harmless error, it can furnish no ground of complaint.

W. F. Stillwell, G. W. Friedley, and G. W. Easley, for the appellant.

W. P. Adkinson, M. F. Chilcote, J. P. Wright, and E. P. Hammond, for the appellee.

ZOLLARS, J. It is charged in the complaint that near Putnamville the track of the railroad is laid in a deep cut, over which is a bridge upon a public highway; that the railroad company negligently constructed, and has negligently maintained, the bridge so low as not to afford sufficient space to allow brakemen walking or standing upon freight-cars in the discharge of their duty in the management of trains to pass under it with safety; that the railway company could, and should, have so constructed the bridge that brakemen could thus pass under it in safety; that it had full knowledge that

AM. ST. REP. VOL. VIL-28

the bridge was dangerous to its brakemen operating its trains; that it negligently failed to place upon or about the bridge lights or other danger signals in common use with well-managed railways, to warn brakemen of the danger.

It is further alleged that on and for a short time prior to January 13, 1882, appellee was engaged in the service of the railway company as a brakeman upon a freight train which passed back and forth over the road, under the bridge, and that, with full knowledge of the dangerous condition of the bridge, the railway company negligently failed to notify him of the danger; that when the train upon which he was engaged as a brakeman was approaching the bridge at about three o'clock, A. M., of January 13, 1882, and when the rain was falling, and a heavy fog and intense darkness covered everything, so that appellee could not see or determine what point the train was passing or approaching, and being unacquainted with that part of the railway, and not knowing that the train was approaching a dangerous bridge, appellee obeyed a call to brakes, made by the engineer in charge of the engine, and went upon the top of the cars to set the brakes, as it was his duty to do as such brakeman; and that while setting the brakes the train passed under the bridge, which, without any fault or negligence on his part, was brought in contact with the back part of his head with such force as to fracture his skull, thereby rendering him unconscious for weeks, causing him great suffering, both physical and mental, so as to impair his mind, causing paralysis of his right side, and thus rendering him a cripple for life, so that he is, and will continue to be, unable to make a living by manual or mental labor. The complaint closes with a general charge that all of the injuries were the result of negligence on the part of the railway company, and without negligence on the part of appellee.

A motion was made below for an order upon appellee to make the complaint more specific. The motion was overruled.

We have considered the arguments of counsel in support of the motion, but do not think that the matter is of sufficient importance to require more than a statement that, whether the ruling of the court below was right or wrong, no substantial injury could result to appellant.

The court below overruled a demurrer to the complaint, and also a motion by appellant for judgment in its favor upon the answers of the jury to the interrogatories submitted by its

counsel. Those rulings are assigned as errors. They may be considered together.

The substance of the answers of the jury to the interrogatories, so far as material, is as follows:

At the time of the injury to appellee, the railway company was maintaining, and for seven years prior thereto had maintained, an overhead bridge upon a highway crossing its track a short distance south of the town of Putnamville. The distance from the top of the rails upon the track to the bridge above was and is fifteen feet and nine inches. The box freight cars used by appellant were eleven feet high. Neither appellee nor any other full-grown man could walk or stand erect upon the top of such box-cars passing upon the track under the bridge without coming in contact with it. The only way in which appellee could have passed under the bridge in safety, when upon the top of such box-cars, was to sit down, or stoop very low. He could neither sit down nor stoop low enough to escape danger, and at the same time apply thebrakes. The railway company neither erected nor maintained any danger signals to warn brakemen of the approach to or nearness of the bridge. By reason of the lowness of the bridge, and the lack of danger signals, the service of a brakeman upon appellant's freight trains over that part of its road was a hazardous and dangerous service, and that fact and all other facts in relation to the bridge were known to the railway company before and at the time it employed appellee as a brakeman, and at the time he was injured. Previous to his employment upon appellant's road, appellee had had about one month's experience as a brakeman upon the Ohio and Mississippi railroad. He was first employed by appellant on the fifth day of October, 1881, as a brakeman upon a freight train, his run being from New Albany to Greencastle, and continued in the service until the fourth day of November, 1881. That run carried him under the bridge in question. During that employment he passed with his train under the bridge from eight to ten times in the daytime, and the same number of times in the night. Subsequently, and on the eleventh or twelfth day of January, 1882, appellee was again employed by the railway company as a head brakeman to assist in operating freight trains, his run, as before, being from New Albany to Greencastle, and under the low bridge. From his first employment up to the time of his injury, he had passed under the bridge from seventeen to twenty times, one half of the