On Petition for Rehearing.
McCabe, J.Avery earnest petition for a rehearing, supported by a very elaborate brief, is presented in this case.
The first fault found with the original opinion is that we stated therein that the venue was changed from Vanderburgh to Warrick county before the first trial. We hasten to cheerfully correct the error, if error it is, by saying that the statement of appellee’s counsel is probably correct to the effect that the first trial took place in the superior court of Vanderburg county, resulting in a judgment in favor of the defendant. After the reversal of this judgment the cause was remanded to the trial court, and the venue was then changed to the Warrick Circuit Court. If we were “in .error” in this statement, as counsel says we were, we were excusable, because the record shows that the first trial that it gives any account of took place in the Warrick Circuit Court. We certainly ought not to be criticised for strictly follow*62ing the record, especially in the absence of any information from the learned counsel that it does not speak the truth. Nor do we mean to intimate that we could accept the statement of counsel, in conflict with the record if the point was material.
Appellee’s learned counsel, in support of the petition for a rehearing, says, that: “It is not our purpose to controvert any of the rules of law laid down by this court in its decision in this case. We believe, upon the other hand, that the law is correctly stated, and. we have at no time contended for a different statement.” And counsel proceeds to favor us with twenty-four printed pages of a brief in support of appellee’s petition for a rehearing. And in the very next statement in his brief, counsel, as to instructions seven and twelve, for the refusal of which wé reversed the judgment, says that, “both instructions seven and twelve are contrary to the law.” This, at least, seems a little difficult to understand. The principal defense made of the court’s refusal to give instruction twelve is that it was substantially given and sufficiently embraced in instruction number fifteen, given by the court to the jury. We would be fully justified in refusing to consider this point in support of appellee’s petition for a rehearing, because no such defense, of the refusal of that instruction was made by appellee’s counsel prior to the petition for a rehearing. It has often been decided by this court that a point made for the first time on a petition for a rehearing that might have been made before, is not entitled to notice. The correct and orderly administration of justice requires such a rule. Points must be made in the briefs filed before the decision of the cause, if they are to be- noticed on a petition for a rehearing. Glittering .generalities will not do in the place of points. But in this case there was not a word said, *63prior to the petition for a rehearing, about instruction fifteen given by the court embracing the substance •of the proposition couched in' instruction twelve refused by the court, as a justification or a defense of the ■court’s refusal of instruction twelve. The correct administration of justice does not require this court to search a voluminous record to discover some matter which might tend to establish that an erroneous refusal of an instruction was rendered harmless, when the party to be benefited by such discovery is represented in this court by able counsel with a voluminous , brief, therein no effort is made to point out such mattef or mention the same. Under such circumstances this court is justified in presuming that no such matter exists. However, we are inclined to think that the court’s refusal of said instruction twelve was justified, on the ground that the same was substantially given in the fifteenth instruction. But there is no way of justifying the refusal of the seventh instruction, except that it is not the law as applied to the evidence. Appellee’s counsel has attempted to justify the refusal of that instruction, both on the ground that it does not express the law, and that it was not applicable to the evidence, and that the evidence was not sufficient to establish the fact upon which it is based. We quote the instruction again: ■“If, at the time of the injuries complained of, the defendant. had a contract with any person to furnish it with lumber by the year, or otherwise, and to deliver the same to the city, and such person did in fact, under such contract, deliver said lumber, and pile the same in the street, then the act of such per-, sons in delivering and piling the same was not the act of the city, and the city would not be liable for any negligence of such person in placing the same in the street, unless it had notice thereof either ex*64press or implied.” Great stress is put upon the word “deliver,” as used in this instruction. It is contended that there could be no such thing as a delivery of the lumber, without an acceptance thereof by the city, and many definitions of the word “deliver” in cases of contracts for delivery of goods or things are cited. Many of them a.re to the effect that a delivery implies an acceptance, and hence an act of the will, and hence knowledge on the part of the party to whom delivery is made.
There are many definitions to the word “deliver.” What particular meaning among its many definitions is to be assigned to the word depends on‘the connection in which it is used. The fourth definition given to it by Webster is: “To give forth in action or exercise; to discharge; as to deliver a broadside or a ball.” That is the same meaning the word has in the sentence, “To deliver the opinion,” “To deliver an address.” The word used in such a connection does not imply an act of the will on the part of some one else, nor an acceptance of anything. Such was the sense in which it was evidently used in instruction seven, as clearly indicated in the sentence reading: “And the city would not be liable for any negligence of such person in placing the same in the street, unless it had notice thereof, either express or implied.” If the court meant by the word “deliver,” in the previous part of the instruction, to imply an acceptance by the city, then there would have been no sense and no meaning in the words “unless it had notice thereof express or implied.” This is so because the city could not accept the lumber in a pile on the street without notice that it was there. The word “deliver” in the' instruction evidently was intended to mean the same that the word “placing” in the sentence above quoted from the instruction was intended to mean. Appel*65lee’s counsel does not question the plain meaning of these words, “and the city would not be liable for any negligence of such person in placing the same in the street, unless it had notice thereof, either express or implied,” nor that they express the law by themselves correctly, but the contention is that the use of the word “deliver” in the previous part of the instruction changes the meaning of these words. But we have shown that one of the meanings of the word “deliver” is synonymous with the sense in which the Avord “place” was used in the instruction. But we need not descend into a technical definition of every word in the instruction. The meaning of the whole could not be misunderstood by the jury or anyone else. It told them in substance, that if the persons from whom the city purchased the lumber in question piled it in the street without notice to the city, express or implied, that it was so piled, the act of placing the lumber in the street was not the act of the city, and it was not liable therefor. Other instructions given by the court properly directed the jury as to when the city \Arould become liable if such lumber pile, so wrongfully placed in the street without notice to it, by leaving it there ah unreasonable length of time. In addition to the cases cited in the original opinion that the instruction correctly expressesd the law, we note a case cited by appellee’s counsel in support of the petition for a rehearing, namely, Wabash, etc., R. W. Co. v. Farver, 111 Ind. 195. This case directly and emphatically upholds the correctness of the refused instruction seven.
It is next contended that because it turned out on the trial that the contract the city had with the sawmill men for the purchase of lumber was in writing, and oral evidence of its particular terms was excluded *66on objection by appellee’s counsel, therefore we must treat the case as if there had been no proof upon the subject. There was enough evidence to show that the city had purchased the lumber, and that it was hauled by the sawmill men to the city. At least the evidence was sufficient to warrant the jury in so inferring. This was sufficient to show the nature of the transaction, and to show that the relation of master and servant did not exist between the city and the sawmill men, and hence the city would not be liable for their negligence in .piling the lumber in the street, unless it had notice, express or implied, of such negligent act, or suffered it to remain there an unreasonable length of time. Wabash, etc., R. W. Co. v. Farver, supra. If there was anything in the particular terms of the contract between the city and the sawmill men tending to establish a different relation, or tending to show the relation of master and servant between the city and the sawmill men, then the appellee’s counsel ought to have introduced such evidence. The evidence that was introduced was sufficient, prima facie, to warrant the jury in drawing the inference that no such relation as master and servant existed between the sawmill men and the city, and authorized them to infer that the only relation existing between them was that of buyer and seller, making the sawmill men independent contractors with the city. The jury were the judges of the evidence, and on them devolved the duty of determining whether the evidence was sufficient to establish that relation, and the duty devolved on the court of telling them what the law was in case they concluded that the evidence did establish that relation.
The nature of the transaction, as disclosed by the evidence already alluded to, makes a much stronger case than Wabash, etc., R. W. Co. v. Farver, supra, *67relied on by appellee, for the application of the doctrine that, in case of the relation of independent contractor there is no liability on the part of one of the contracting parties for the negligent acts of the other in carrying ont the contract, where it does not necessarily create a nuisance. The facts on which that decision was made were that the railway company was engaged in constructing a well or reservoir to supply a water station on the line of its road near Auburn, Indiana. Running water interfered with the work, and it became necessary to cause the accumulating water to be pumped out of'the way, so as to prevent it from running into the well or reservoir which was in process of construction. The construction of the well and laying pipes thence to the water station, had been committed to the charge of a Mr. Kress, an employe of the railway, who, with a force of men under his control, was engaged in providing means to supply the station with water. Williams, who resided in or near Auburn, was the' owner of a small, portable steam engine, which he was accustomed to employ in sawing wood, threshing grain, pumping water and the like, as opportunity offered. He contracted with Kress, for a stipulated per diem, to furnish and operate his engine in pumping, at such times as might be necessary, in order to keep the water from interfering with the work which the latter was constructing. Williams agreed to furnish his engine and personally superintend the running of it, and to provide and pay for such assistance as he needed in keeping the water from obstructing the progress of the work. If it became necessary that he should run the engine at night he was to receive extra compensation. In pursuance of the agreement the latter placed his engine in a vacant lot, some six feet or more outside the line of a public highway, which intersected the railway *68company’s line at or near the point where the reservoir was being constructed. So far as appears, he selected the location of the engine, and controlled its operation, as the work he engaged to do required. While he was thus engaged in carrying out his agreement, the plaintiff’s horse, in passing along the adjacent highway, took fright at the engine and became unmanageable. The plaintiff was thrown from the carriage and -injured.' He recovered a judgment in the trial court, and in reversing the judgment on the facts above stated, Mitchell, J., speaking for the court, said: “The question is, whether, under the circumstances, the railway company is liable for the negligence of Williams, assuming that he was negligent in operating his engine so near the public highway. The rule which controls in cases of this class has become Ayell- established, and has more than once been recognized and applied by this court. Ryan v. Curran, 64 Ind. 345, 31 Am. Rep. 123; Sessengut v. Posey, 67 Ind. 408, 33 Am. Rep. 98; City of Logansport v. Dick, 70 Ind. 65, 36 Am. Rep. 166. Under this rule, where work which does not necessarily create a nuisance, but is in itself harmless and lawful when carefully conducted, is let by an employer, who merely-prescribes the end, to another, who undertakes to accomplish the end prescribed by means which he is to employ at his discretion, the latter is, in respect to the means employed, the master. If, during the progress of the work, a third person sustains injury by the negligent use of the means employed and controlled by the contractor, the employer is not answerable. The inquiry in such case is, did the relation of master and servant subsist between the person for whom the work was done, and the person whose negligence occasioned the injury? * * * * The work contracted to be done was not in itself unlawful, nor was *69it necessarily a nuisance to operate a portable steam-engine in a careful manner in close proximity to a public highway. Injury could only result from its negligent use.” And the judgment was reversed on the evidence because it failed to show that the relation of master and servant subsisted between the railway and Williams, the owner and operator of the portable steam engine, and hence the railway was not liable for his negligence.
But the rule there laid down is much more applicable to the evidence here, because it clearly indicates that the only relation existing between the city and the sawmill men was that of buyer and seller, and not that of master and servant. And there being enough evidence to warrant and require the submission of the question of fact to the jury as to the true relation subsisting between the sawmill men and the city, the appellant had a, right to demand an instruction stating what the law was in case the jury found that the relation was not that of master and servant, but was merely that of buyer and seller. If they found that to be the relation, appellant had a right to an instruction that the negligent acts of the seller were not chargeable to the buyer. That the refused instruction seven would have done.
Another contention why the instruction was properly refused, is that the evidence was wholly insufficient to establish that there was any contractor in the case. But such contention assumes that it is the duty of the trial judge to determine that issue, as well as all other issues, in advance of the submission of the case to the jury, and if he thinks the evidence insufficient, after carefuly weighing it, pro and con, he need not submit it to the jury. But that is very far from the legal duty of the trial judge. If there is any evidence sufficient to warrant the jury in drawing the *70inference that a certain fact exists pertinent to the issues, it is the duty of the trial judge, especially if requested, to instruct the jury what the law arising' from such fact is, even though lie may be of opinion that such fact is not established by a preponderance of the whole evidence.. Otherwise a trial of the facts by a jury could take place- only in empty form, but not in truth and in reality. Under such a rule no question of fact could be submitted to the jury until the trial judge had decided that the preponderance of the evidence had established the fact.
We are constrained to hold that the trial court erred in refusing to give instruction seven, and therefore the petition for rehearing ought to be, and is, overruled.