On Petition for Rehearing.
Myers, J.Appellant has filed a petition for a rehearing, and in support thereof insists that we failed to decide the question arising upon the overruling of his objection to the filing of an amended first and second paragraph of complaint. The record shows that over the objection of appellant, the court permitted appellee to file these amended paragraphs. In our former examination of this case, after comparing the original paragraphs with the amended ones, ahd giving appellant the benefit of the statements made in his brief, we came to the conclusion that appellant in this respect relied solely upon the statute of limitations, and, without going into the matter in detail, we indicated the proper practice. '
22. We now add that the objection, in the court below, was stated orally, but what it was does not appear from any bill of exceptions, nor was , it entered upon the record or minutes of the court, as contemplated by §3, Acts 1903 p. 338, 339, §663 Burns 1914. Appellant did not pursue any of these methods to bring to this court the question upon which the trial court ruled, and for that reason there is no foundation for his insistence.
23. However, if the question were properly, here, the decisions of this and the Appellate Court clearly sustain the ruling of the trial court. The basis of . the action as set forth in the original, as well as the amended paragraphs, was the .death of Byron E. Fultz, caused by the wrongful acts or omissions of appellant, and not the particular means or manner of his death. The amended paragraphs referred to the *348same time and the same transaction as did the original paragraphs, and alleged many of the same acts and omissions which were characterized as negligently done or omitted to be done, and in addition that the decedent continued to work in an unsafe place by reason of appellant’s assurance of safety. In either case, the question was one of fact, and hence of evidence, as to what really was .the wrongful act or omission. It is not, nor could it be successfully, contended that a new cause of action was introduced, or that a recovery on the original paragraphs would not be a complete bar to any recovery under the pleadings as amended, and, this being true, the amended paragraphs were not affected by the statute of limitations. Jeffersonville, etc., R. Co. v. Hendricks (1872), 41 Ind. 48; Indiana Union Traction Co. v. Pring (1912), 50 Ind. App. 566, 96 N. E. 180; Indianapolis, etc., R. Co. v. Fearnaught (1907), 40 Ind. App. 333, 82 N. E. 102; Cleveland, etc., R. Co. v. Bergschicker (1903), 162 Ind. 108, 69 N. E. 1000; Blake v. Minkner (1894), 136 Ind. 418, 426, 36 N. E. 246; Peerless Stone Co. v. Wray (1898), 152 Ind. 27, 51 N. E. 326.
The petition for a rehearing is overruled.
Note. — Reported in 115 N. E. 324, 116 N. E. 421. Master and servant: (a) master’s breach of a statutory duty, servant’s assumption of risk, 6 L. R. A. (N. S.) 981, 33 L. R. A. (N. S.) 646, 42 L. R. A. (N. S.) 1229, L. R. A. 1915 E 527, 4 Ann. Cas. 599, 13 Ann. Cas. 36, Ann. Cas. 1913 C 210; (b) servant’s assumption of risk after commencement of employment, as question of law or fact, 3 Ann Cas. 814; 29 Cyc 631, 633.