T management, and control of cemetery asso-, road. There must be a showing of an acciations, approved May 14, 1903 (Laws of quisition of the title either by purchase or 1903, p. 90). Section 5 of this law gave to such cemetery associations the right to acquire property for cemetery purposes, either by purchase or by gift. It appears that the organization of this cemetery association was without public notice but by arrangement of a portion of those having relatives buried there. There is no evidence that the appellant corporation has acquired the Rockwell Cemetery grounds, either by purchase or gift. [3] It is contended by appellant in its cross-petition that the Cemetery road is a private road, and testimony was introduced to support that contention. A highway commissioner testified that he had not in any way improved that road, but that it had been graveled at one time by the Oakwood Cemetery Association. Other testimony of like character was offered. Such evidence does not disprove the public character of the road, which is derived from the original dedication by the owner of the land and the acceptance by the public through user. It seems clear from the evidence that the public generally used this road, and that it is, and has been from the time of the filing of the plat by Rockwell, a public highway. gift. There is no such showing in this case. Appellant cites, as authority for its contention as to estoppel, four cases decided by this court. The case of Metropolitan Elevated Railway Co. v. Eschner, 232 Ill. 210, 83 N. E. 809, holds that the persons named in the petition as owners are not required to prove their title. The case of Sanitary District of Chicago v. Pittsburg, Ft. Wayne & Chicago Ry. Co., 216 Ill. 575, 75 N. E. 248, also holds that the averments of the petition as to the nature or extent of the estate or title of the defendants are binding upon the petitioner, and defendants are not required to establish such title. In Metropolitan City Railway Co. v. Chicago West Division Ry. Co., 87 Ill. 317, the petition alleged that the defendant had some property rights, interest, or privileges which were sought to be condemned, and the court held that the petitioner having asserted that the defendant had such rights, could not thereafter deny their existence. In Peoria, Pekin & Jacksonville R. Co. v. Laurie, 63 Ill. 264, the petition alleged that Laurie was the owner of the land sought to be condemned, and it was there held that such an allegation was binding on the petitioner. There is in this petition no averment that appellant has any property rights whatever in the property and no basis for estoppel. The cases cited are not ap plicable here. [4] Appellant contends that appellee is estopped to urge that Cemetery lane is a public road for the reason that it has described the part of it sought to be condemned as belonging to private unknown Appellant has cited, in support of its conowners. We are, however, unable to see how tention that it has an interest in tract No. this, though conceded to be true, would be 2, Hines v. State, 126 Tenn. 1, 149 S. W. of aid to appellant unless it can show some 1058, 42 L. R. A. (N. S.) 1138, and Van Busright or interest in the tract that entitles it kirk v. Standard Oil Co. (N. J. Ch.) 121 Atl. to be heard in a condemnation proceeding. 450. These cases are authority for the propEven though appellee were to be held to the osition that where land has been appropristatement made in the petition that this landated for burial purposes, those who have the belongs to private owners, still appellant benefit of burial in the land have the right can show no right to have the judgment set aside and compensation awarded in the absence of a showing of interest in itself. Though the property were to be held to be private property because of the allegations in the petition, this would not show that it is private property owned by appellant or in which it has an interest, nor would it relieve appellant of the necessity of showing that it has such an interest therein as entitles it to defend the petition for condemnation. The petition does not allege that appellant has any interest, so it cannot be said that the petitioner is estopped to deny interest in appellant. There is no proof in the record of any interest of appellant in this road other and different from that which the public enjoys. The organization of a corporation by individuals whose relatives are interred in that cemetery, while a very worthy purpose, does not give to the corporation ownership or control over the road in question, even though it were a private to visit it and the right of free ingress and egress. In the absence of a showing, however, of a damage to that right in this case, those cases are of no assistance. The evidence shows that the use for which this portion of the road known as Cemetery lane is to be taken will in no wise interfere with the use of the lane; that the lane remains open as before. The only difference, so far as access to the cemeteries is concerned, lies in the fact that those desiring to visit them may travel over the hard-surface road from the city of La Salle to the south line of Rockwell Cemetery instead of following the lane previously laid out. There is no showing in the record that the parties who comprise the appellant organization will be in anyway damaged in their right of ingress and egress to and from this cemetery, but the evidence indicates that those means are better secured to them by the road proposed to be built by the state. It cannot be claimed that there is anything in this record (143 N.E.) which gives to appellant an exclusive right of way over the road known as Cemetery lane. We are of the opinion that appellant has no such interest as entitles it to have the order of November 17, 1923, granting the prayer of the petition, set aside and vacated, and the court did not err in overruling its motion in that behalf. There is no error in the record, and the judgment of the circuit court will be affirmed. Judgment affirmed. PITTSBURGH, C., C. & ST. L. RY. CO. v. (Supreme Court of Indiana. May 13, 1924.) and run its cars for the transportation of Sec Appellant's petition for a rehearing is overruled. 1. Appeal and error 1185-Courts 220 (3)-Procedure to be followed by successful appellant but dissatisfied with opinion of Ap- UNION TRACTION CO. of INDIANA v. ALpellate Court. An appellant, dissatisfied with the declaration of the law by the Appellate Court in reversing a judgment, may petition for the modification of its opinion, and, upon the overruling of such petition, may then petition the Supreme Court to transfer the cause. 2. Carriers 236(1)-Carrier liable for refusal to take and transport passenger safely as required by statute. For a refusal to take and transport safely a passenger properly offering himself as such, a railroad corporation is liable to the party aggrieved for all damages caused by the refusal, in view of Rev. St. 1881, §§ 3925, 3926 (Burns' Ann. St. 1914, §§ 5271, 5314). Appeal from Circuit Court, Miami County; On rehearing. Rehearing denied. EWBANK, C. J. [1] Appellant insists that the decision of the Appellate Court on a former appeal (70 Ind. App. 366, 118 N. E. 598) is not "the law of the case." and assigns as a reason the alleged impossibility for the appellant, after having obtained a reversal of the first judgment by its appeal to the Appellate Court, to bring the opinion of that court before the Supreme Court for review. But it has been decided that an appellant, dissatisfied with the declaration of the law by the Appellate Court in reversing a judgment, may petition for the modification of its opinion, and, upon the overruling of such petition, may then petition the Supreme Court to transfer the cause. United States Cement Co. v. Cooper, 172 Ind. 599, 602, 88 N. E. 69; Ewbank Manual (2d Ed.) § 247a. [2] Every railroad corporation is required, by the statute under which it is incorporated and operated as a common carrier. to start STADT. (No. 24674.) (Supreme Court of Indiana, May 16, 1924.) I. Carriers 245-Pleading 8(19)-Complaint held to disclose relation of carrier and passenger. In action for injuries, allegations that plaintiff boarded defendant's street car bound for center of city, while stopped at regular stopping place for passengers, took seat therein, and remained thereon as passenger until it was wrecked, sufficiently disclosed relation of carrier and passenger, even if statement that he was a passenger were conclusion and there was no averment that he paid or offered to pay fare. 2. Carriers 245-Pleading 214(5)-Facts shown by conclusions and participial expressions given effect as showing relation of carrier and passenger. While question on demurrer as to whether relation of carrier and passenger exists as matter of law is always determined from pleaded facts and circumstances, facts shown by conclusions and participial expressions will be given same force and effect as those directly stated. 3. Carriers 239, 282-Person boarding car without intending to pay fare not passenger, and duty of carrier is only not to willfully injure him. Where one boards street car with intent to ride therein without paying, or offering to pay, fare, relation of carrier and passenger does not exist, and carrier owes him no duty other than not to willfully injure him. 4. Trial 260(1)-Refusal of instruction fully covered by instructions given not error. It is not error to refuse correct instruction, subject-matter of which is fully covered by instructions given. 5. Carriers 306(4)—Railroad and street car companies jointly and severally liable for injuries resulting from concurring negligence. Railroad company and street railway company, whose negligent acts concur in place and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes time to injure street car passenger in collision | ance of damages for peril resulting in injury is at railroad crossing, are jointly and severally not double compensation as covered by allowliable for whole injury. ance for pain and suffering caused by injuries. 12. Damages 130 (3)—$5,000 for injuries for broken ribs and other Injuries held not excessive. 6. Carriers 321 (12) Refusal of instructions as to negligence of train crew held not error in action for injuries to street car passenger in crossing collision. In action for injuries to street car passenger in collision at railroad crossing, refusal of instructions as to railroad's failure to exercise reasonable care and train crew's negligent failure to signal engineer to stop, or have proper appliances properly coupled up, held not error where street car crew claimed to have stopped car and looked for train, and jury was instructed that street railway company would not be liable if they did so and train could not be seen, or if train crew discovered peril in time to avoid injury. 8. Carriers 321 (12)—Instruction as to train crew's failure to send man to crossing held not error as to codefendant street railway company. In action against street railway company and Director General of Railroads for injuries to street car passenger, instruction that train crew's failure to send man to crossing in advance of moving cars would not necessarily be negligence, as they were only required to give reasonable and timely notice of car's approach, held not error as to street railway company, though not bound by admissions in complaint. 9. Damages 216(10) — Instructions to consider plaintiff's agony and perilous position held warranted by evidence. In action for injuries to street car passenger in collision at railroad crossing, instructions to consider plaintiff's agony and perilous position as result of collision in assessing damages held warranted by evidence. 10. Damages 161-Evidence of mental suffering and peril immediately before collision held admissible under allegation, Under allegation of complaint, in action for injuries to street car passenger in collision with freight cars at railroad crossing, that plaintiff's nervous system was shocked by horror of situation while he lay for two hours under wreckage, expecting every minute to be crushed to death, evidence was admissible to prove, not only physical injuries and pain, but mental suffering and peril of which he was cognizant immediately before collision, as well as while he was under car. 11. Damages 52-Allowance for peril not double compensation as covered by allowance for pain and suffering. Peril to life may considered in proper case in fixing damages, but is not necessarily included in "suffering of body and mind," and allow $5,000 for injuries to 51 year old city policeman who had four ribs broken, his floating rib torn loose, sustained injuries to his spine, neck, face, and ankle, and other injuries, was in bed three weeks and up and down for next seven weeks, incurred liability for $96 for nurse's, hospital, and doctor's services, lost 25 pounds, and was still suffering from pains at time of trial, held not excessive. Appeal from Circuit Court, Randolph County; Theo. Shockney, Special Judge. Action by Daniel B. Alstadt against the Union Traction Company of Indiana and another. From judgment for plaintiff against Transferred from Appellate Court under Burn's Ann. St. named defendant, it appeals. 1914, § 1394, cl. 2. Affirmed. Superseding opinion of Appellate Court (139 N. E. 333). J. A. Van Osdol, of Anderson, for appellant. E. R. Templer and C. C. Ball, both of Muncie, for appellee. MYERS, J. This was an action by appellee to recover damages for personal injuries sustained by him while riding on a street car operated by appellant as the result of a collision between the street car and a cut of freight cars of 'the Lake Erie & Western Railroad Company. Trial was had before a jury, and verdict for the defendant Director General of Railroads and in favor of appellee against appellant for $5,000. The judgment was in accordance with the verdict. For a reversal of that judgment appellant appealed, and has assigned as errors the overruling of its demurrer to the complaint, and the overruling of its motion for a new trial. Appellant insists that the complaint fails to state facts showing that appellee was a passenger upon the street car, in that it failed to allege that the car, at the point where appellee boarded it, was stopped to take on or let off passengers, or that appellee was lawfully on the car, or facts from which the court can say as a matter of law that the relationship between appellant and appellee was that of carrier and passenger. For the purposes of this contention, a mere reference to certain statements of the complaint will suffice to indicate the point involved. The complaint alleged that on April 8, 1919, appellant was engaged in the business of operating street cars in the city of Muncie, Ind., as a common carrier of passengers for hire; that it had tracks running practically north and south on Madison street intersecting tracks of the Cleveland, Cincinnati, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 (143 N.E.) From the complaint any one would readily understand that appellee was riding in one of appellant's passenger cars-a public con Chicago & St. Louis Railroad and tracks of | Block Coal Co. v. De Armey, 179 Ind. 592, the Lake Erie & Western Railroad Company; 100 N. E. 675, 102 N. E. 99; Rodebaugh v. that the tracks of the former railroad com- Rodebaugh (Ind. App.) 138 N. E. 263. pany were located about 50 feet south of the latter company's tracks; that at that time, and for some time prior thereto, both of these railroads used their tracks for switching | veyance at the time of the alleged collision purposes and in the operation of their pas- and injury. Moreover, it appears that while senger and freight trains; "that he (appel- appellee was seated as a passenger and was lee) boarded one of the passenger cars of the being transported toward the center of the codefendant Union Traction Company of In- city of Muncie, the collision occurred by readiana while same was stopped at a regular son of the negligence of appellant's emstopping place to take on passengers, and ployees in charge of the car. If it be conwhich car was then and there bound for the ceded that the statement of appellee that he center of said city, and took a seat about was a "passenger" is a conclusion dependthe middle of said car on the west side ing upon facts and circumstances showing thereof, and remained thereon as a passen-him to be such, yet it will not do to say that ger until the same was wrecked as hereinaft- the pleader's use of the word "passenger" was er stated" that said street car was then not correctly interpreted by appellant as controlled by a motorman and conductor meaning rightfully on the ill-fated car as a in charge of the car, who were employees public conveyance of passengers subject to of appellant; "that while plaintiff was then the rules governing such service. a passenger on said car there were other passengers on said car;" that when the car reached Madison street it turned north and continued on that street until stopped south and near the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company's tracks; that it was then the duty of the conductor in charge of the car to go forward to the Lake Erie & Western Railroad Company's tracks, look east and west, and listen for ap: proaching trains, which he negligently failed to do; that appellee was then and there injured "without any fault or negligence on his part and while he was seated as a passenger in said street car." [1, 2] Appellant, in support of its insistences, cites the case of Ohio & Mississippi Railway Company v. Craucher, 132 Ind. 275, 31 N. E. 941, wherein it is said: "The allegation that he took passage to be carried from one station to another is a fact that made him a passenger." In the instant case the declaration that he boarded one of appellant's passenger cars at a certain outpoint in the city bound for the center of the city, when considered in the light of street car service, is a statement quite as broad and comprehensive as the one quoted from the case cited and held sufficient to disclose the relation of carrier and passenger. While the question on demurrer as to whether the relation of carrier and passenger exists as a matter of law is always determined from the pleaded facts and circumstances, yet the strict, positive, and direct allegation rule has been greatly modified, so that now facts shown by conclusions and participial expressions will be given the same force and effect as those directly stated. Fauvre Coal Co. v. Kushner, 188 Ind. 314, 123 N. E. 409; Rochester Bridge Co. v. McNeill, 188 Ind. 432, 122 N. E. 662; Domestic 143 N.E.-56 It is alleged that the car was stopped at a regular stopping place to take on passengers. Appellee entered the car at that point and took a seat near the middle of the car. These facts alone as to the point in question would sustain the complaint as against the demurrer, according to the rule anounced in Hall v. Terre Haute Electric Co., 38 Ind. App. 43, 76 N. E. 334; but it lee paid or offered to pay his fare. The absence of this allegation would not destroy the force of others to the effect that appellee was a passenger, nor relieve appellant of the duty of exercising care commensurate with the danger to which it subjected appellee in the operation of the car over the other railroad tracks. Indianapolis Traction & Terminal Co. v. Lawson, 143 Fed. 834, 74 C. Č. A. 630, 5 L. R. A. (N. S.) 721, 6 Ann. Cas. 666. It was not error to overrule the demurrer. is said that there is no averment that appel The refusal of the court to give appellant's tendered instructions Nos. 9, 10, 17, and 21, and in giving instructions Nos. 3, 4, 23, 24, 38, and 39, and that the damages assessed by the jury were excessive, are the causes assigned for a new trial. [3] A brief reference to instruction No. 9, refused, is sufficient to indicate its subject. If appellee boarded the street car intending to ride thereon without paying any fare, and without offering or intending to offer to pay any fare, the relation of carrier and passenger did not exist, and appellant owed him no duty other than not to willfully injure him. We deem it sufficient to say that the subject of this instruction was fully and correctly covered by instruction No. 10 given by the court on its own motion. The instruction given is in line with the rule announced in the following cases: Citizens' Street Railroad Co. v. Jolly, 161 Ind. 80, 67 N. E. 935; Indianapolis Traction & Terminal Co. v. Klentschy, 167 Ind. 598, 79 N. E. 908, 10 Ann. Cas. 869; Hall v. Terre Haute Electric Co., supra; | The court, of its own motion, gave five Clark v. Southern Ry. Co., 69 Ind. App. 697, 119 N. E. 539; Malott v. Weston, 51 Ind. App. 572, 575, 98 N. E. 127; Indianapolis Traction & Terminal Co. v. Lawson, supra; Ohio & Mississippi Ry. Co. v. Craucher, supra. The uncontradicted evidence showed that the street car upon which appellee was riding at the time of the collision stopped at Kirby avenue and Beacon street when and where appellee entered the car and was carried down Kirby avenue onto Madison street, where it turned north along Madison, stopping near the Big Four tracks while a train on that road passed. Then the car proceeded across these tracks and onto the tracks of the Lake Erie, where the collision occurred. Appellee testified that he had the car fare in his hand ready to turn over to the conductor, who hurriedly passed by him without an offer to collect it. The conductor testified that he did not collect the car fare and that appellee did not offer to pay it. There was no evidence of refusal to pay fare. [4] It is not error to refuse an instruction, although a correct statement of the law, when the subject thereof is fully covered by instructions given. Public Utilities Co. v. Iverson, 187 Ind. 672, 681, 121 N. E. 33; Yetter v. Yetter, 185 Ind. 206, 110 N. E. 195; Breadheft v. Cleveland, 184 Ind. 130, 136, 108 N. E. 5, 110 N. E. 662; Ginn v. State, 161 Ind. 292, 68 N. E. 294; Lake Erie, etc., R. Co. v. Howarth, 73 Ind. App. 454, 124 N. E. 687, 127 N. E. 804. instructions, more or less pertaining to liability for damage from concurring negligence. Of these, No. 34 especially presented to the jury clearly under what circumstances each of the defendants would be liable separately, and when jointly. There was no error in refusing instruction No. 10. [6] Instruction No. 17 was on the subject of appellant's codefendant's failure to exercise reasonable care to avoid collisions with street cars and travelers approaching or entering upon its crossings, although an ordinance of the city of Muncie required it to operate safety gates only until 10 o'clock p. m. Instruction No. 21 was to the effect that the railroad train crew was guilty of negligence authorizing a verdict for appellee if they negligently failed to signal the engineer to stop the train in time, or if they failed to have proper appliances for conducting air to the brakes of the various cars, or failed to have the air apparatus coupled up whereby the train could have been stopped after seeing the street car on the railroad tracks in time to have avoided the collision. It appears from the evidence that the collision and injury of appellee occurred some time after 10 o'clock p. m. on April 8, 1919. There is no claim on the part of appellant's employees in charge of the car of any reliance upon the operation of safety gates by its codefendant. On the contrary, they claim to have stopped the car and that the conduc[5] Appellant insists that the court erred tor went forward and looked for an approachin refusing to give instruction No. 10. From ing train. The jury was instructed that if appellant's points and authorities it would this was done and the approaching train have us treat this instruction as proceeding could not be seen, then appellant would not be upon the theory that liability for injury caused by the concurring negligence of two liable. Moreover, by instruction No. 7 the jury was told that if it found from the evitort-feasors is joint and several. However, dence that appellant was negligent in going if the action be against one only, that one would not be protected by the concurring on to the tracks of the railroad company at negligence of the other; or where, as here, the time of the accident, but also found that the action is against both, the liability is the agents and servants of the latter company discovered the peril of appellant's car joint. But if the relation of carrier and pas-in time to have avoided the injury by the senger did not exist between appellant and appellee, then appellant would not be liable exercise of reasonable diligence, and it failed to appellee, although not in the exercise of so to do, and such failure was the cause of due care. Our disposition of instruction No. the injury sued for, then it should find for 9 makes it unnecessary for us to further con- appellant, notwithstanding it was negligent sider the passenger part of this instruction. in entering upon the track crossing. The Without stopping to recite the evidence be- three instructions last mentioned, when confore the jury in the instant case, it is suffi- sidered together, might be criticized on the cient to say that while the evidence tended ground of stating the law too favorably to apto show separate acts of negligence by each pellant. of the defendants, yet they were concurrent in place and time in producing appellee's injuries. Thus, as said in South Bend Mfg. Co. v. Liphart, 12 Ind. App. 185, 190, 39 N. E. 908, 909, cited by appellant: "The case is analogous to that of an injury produced by the collision of two railroad trains under different ownership and management, caused by the concurring negligence of both companies. Each company is jointly and severally liable for the whole injury." Furthermore, instructions Nos. 6, 9, 14, 15, 16, 17, and 27 covered every phase of refused instruction No. 21. Instructions Nos. 3 and 4 are challenged on the ground that when they are considered in connection with instruction No. 34, they tend to confuse the jury. We do not so con strue them. [7] By instruction No. 23 the jury was told, in substance, that the backing of the locomotive and cut of cars over the crossing was, under all the circumstances, a ques |