The case in 22 O. S. is followed in the case of Spenck v. Dean, 49 Neb., 66, the third proposition of the syllabus in the case being as follows: "Where in an action to recover an amount alleged to be due the plaintiff as wages for work and labor performed at an agreed price, there is a conflict in respect to the amount agreed upon, evidence of the value at the time of the contract of the work performed is competent and admissible." In the case of Valley Lumber Company v. Smith et al, 71 Wis., 304, the first proposition of the syllabus is as follows: "Where there is a direct conflict of testimony as to the price orally agreed to be paid for property, evidence of its real value at the time of the contract is admissible." In Krammen v. The Meridean Mill Company, 58 Wis., 399, the second proposition of the syllabus is as follows: "In an action for the balance due on a parol contract for manufacturing laths, the complaint alleged that the agreed price was forty-five cents and the answer that it was twenty-six cents per thousand. It appeared that in pursuance of the contract the work had been done in the defendants' mill and it had furnished the power, oils, files, and twine, and had done the filing and mill-wright work. Held: That evidence on the part of the plaintiff as to the usual price for sawing laths in mills generally was inadmissible." These last two cases cite the case of Allison v. Horning, supra. It will be seen that the foundation in which the rule rests is not very substantial, and that the value of the evidence is not considered very great. It is considered of some value and is admitted for what it is worth, is about the best that can be said of it. We find no decision which goes to the extent of admitting evidence as to the "market price" in such cases, and it would seem from the case in 58 Wis., supra, where "usual price" was held inadmissible that "market price" would be equally inadmissible. Probably there could be no such thing as a "market price" for digging a ditch-that the difference which must nat urally exist in different ditches would require different prices, and, therefore, preclude the establishment of a market price. It is doubtful whether plaintiff in error had properly saved an exception to the evidence offered by plaintiff in rebuttal. Evidence was offered by plaintiff in chief without objection on the part of the defendant as to the number of men and as to the time that they worked on this work, so that whether the objection of defendant to this kind of evidence when offered by plaintiff in rebuttal was well taken or not, would probably be immaterial for the reason that the evidence was already before the jury without objection. But we are of the opinion that this evidence was proper by way of rebuttal to the evidence of the defendant as to market price. The judgment will be affirmed. Moulinier, Bettman & Hunt, for plaintiff in error. REMOVAL OF GUARDIAN. [Circuit Court of Darke County.] A. A. NORTH V. JOHN A. SMITH ET AL. Decided, November Term, 1904. Guardian-Removal of for Cause-Error to Court of Common Pleas Proceedings not Reviewable. The circuit court is without jurisdiction to review on error an order of the court of common pleas removing a guardian for cause, made on appeal from the probate court. WILSON, J.; SULLIVAN, J., and DUSTIN, J., concur. By a proceeding in the probate court, the plaintiff in error, a guardian, was by the order of that court removed for cause. An appeal was prosecuted to the court of common pleas under favor of Section 6407 of the Revised Statutes as amended (95 0. L., 406). That court also made an order of removal. It is now sought to prosecute error proceedings in the circuit court to review the order of the court of common pleas. North v. Smith et al. Has the circuit court jurisdiction? [Vol. V, N. S. Before the amendment of Sections 6708 and 6407 (95 O. L., 391, 406), Revised Statutes, neither error nor appeal could be prosecuted from an order of the probate court removing or refusing to remove a guardian. This was so for the reason, it was held, that such an order did not affect a substantial right. Had it been such order as is defined in Section 6707, Revised Statutes, error or appeal would lie under the general statutes without special provision made therefor. It was the policy of the law to confer upon the probate court exclusive jurisdiction over the matter. The amendment extends the jurisdiction in error and on appeal to the court of common pleas. It does not change the character of the order, as, though final, not affecting a substantial right. It does not enlarge the jurisdiction in error of the circuit court. Section 6709, which confers jurisdiction, is the same as before. The order that may be reviewed by virtue of its provisions is such as is defined in Section 6707, and we have seen that the order in question is not of that character. It can not, therefore, be reviewed by the circuit court. Society v. Ely, 56 O. S., 405, and Davis v. Kauffman, 55 0. S., 556, relied upon by the plaintiff in error, are not in conflict with this view. The orders there reviewed were held to affect a substantial right. Subsequently Munger v. Jeffries, 62 0. S., 149, holds that an order such as is involved here is not reviewable under the general provisions of the statute. Reading the order into Section 6708 enlarged the jurisdiction of the court of common pleas by that much more than is conferred by Section 6707. But it did not by that much enlarge the jurisdiction of the courts all along the line. Notwithstanding the amendment, it should be said that it is the policy of the law now, to make the jurisdiction of the court of common pleas final, as it was before the policy to make that of the probate court final. The reason for the policy still obtains, and the amendment should not be given scope beyond its letter. The petition in error will be dismissed. A. A. North, W. Y. Stubbs, for plaintiff in error. Meeker & Gaskill, Anderson, Bowman & Anderson, for defendant in error. 1904-5.] Huron County. EMPLOYE GIVEN DANGEROUS PLACE TO WORK. [Circuit Court of Huron County.] EDWARD L. GREEN V. NEW YORK, CHICAGO & ST. LOUIS RAILWAY. Decided, October Term, 1904. Master and Servant-Latter Bound to Know the Dangers of the Place in Which He is at Work, When-Contributory Negligence-Burden of Proof as to-Presumption of Negligence Arises, When-Evidence-Charge of Court. 1. Where the conditions are not complex, and the circumstances such as to be easily comprehended, an employe who knows the facts and conditions and circumstances, is bound and conclusively presumed to know the dangers arising therefrom. 2. A presumption of negligence arises which it is the duty of the administrator to rebut, when it appears that the decedent might, by the exercise of ordinary care, have seen the train by which he was struck, or by listening would have heard it, in time to have stepped from his place of danger. 3. When a question and answer do not add anything to the facts of the case, a reviewing court will not reverse the judgment, notwithstanding the question was incompetent, and a motion to strike it and the answer from the record might well have been granted. HALE, J.; PARKER, J., and MARVIN, J., concur (Judges Hale and Marvin sitting in place of Judges Hull and Haynes). Heard on error. Edward Green, the decedent, on June 8, 1901, was employed by the defendant railroad company, as a section hand and had been so employed for about a year and a half. On the day named, he was at work repairing the track at Bellevue, or leveling up the roadbed which had been disturbed by the renewal of the track. While so at work, a train passing upon the track between the rails of which he stood, ran him down and killed him. This action is prosecuted by his son who was appointed administrator, as authorized by statute, to obtain compensation from the railroad company for wrongfully causing the death of the decedent. Green v. N. Y., C. & St. L. Ry. [Vol. V, N. S. The negligence charged in substance is, that the company failed to provide any rule or regulation for the government of its employes to insure their safety while in the performance of their duties; that the engineer in charge of the engine that run Green down, failed to give any warning of the approach of the engine either by bell or whistle; and that the company was further in fault by not providing some means by which he could have been warned of the approach of the train, either by his boss, or some other employe of the company. This ast ground of negligence is not very distinctly stated in the petition, but we give the plaintiff the benefit of such allegation. The issues were made upon these allegations of the petition, by a general denial, except the admission of certain formal averments, and charging contributory negligence on the part of the decedent such as should defeat a recovery. Trial was had, a verdict rendered, under the charge of the court, in favor of the defendant, and, after the overruling of the motion for a new trial, judgment was rendered upon the verdict. Several errors are assigned which we will briefly notice. First, it is said that the verdict was not sustained by sufficient evidence and therefore the motion for a new trial should have been granted instead of overruled. Considering the nature of the employment of this decedent, his work upon the tracks of the railroad company-always dangerous-where many trains were passing back and forth, and knowing that no provision had been made by the company, either by rule or otherwise, to insure his safety, it was incumbent upon him to take all reasonable care himself to escape injury from passing trains. He had no ground whatever for relying upon being taken care of by the company other than what was done, except to expect the engineer upon the engine to give the accustomed signals. But without going into a discussion of the facts, we are satisfied that the verdict was the only one proper to have been rendered in the case. However the facts of the case were such as to render it entirely proper that the issues should be submitted to the jury and a |